A right to water perspective

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1 Report Water source conflict in Nepal: A right to water perspective

2 The report was produced by Mr Rabin Lal Shrestha from WaterAid in Nepal with support from advocacy team members Ms Shikha Shrestha, Ms Anita Pradhan and Mr Govind Shrestha. Mr Richard Steele from WaterAid in the UK edited the report in partnership with the Federation of Water and Sanitation Users in Nepal (FEDWASUN). Ms Pragya Shrestha, consultant, contributed to the initial draft and Ms Linda Kentro from USAID Nepal provided valuable comments and suggestions in the draft report. The report should be cited as WaterAid in Nepal (2012) Water source conflict in Nepal: A right to water perspective It can be found in the document section of the WaterAid in Nepal country programme website A WaterAid in Nepal publication September 2012 WaterAid transforms lives by improving access to safe water, hygiene and sanitation in the world s poorest communities. We work with partners and influence decision-makers to maximise our impact. Cover picture: Discussion on water source conflict and community engagement in protecting water sources in Ilam. Picture: WaterAid in Nepal

3 Contents Executive summary 5 1. The right to water 7 2. Objectives and methodology of study Diverse reasons for emergence of conflict Availability of water sources and multiple usage Managing ego and revenge over past exploitation Dealing with political disputes Crossing of administrative borders Entitlement of water source ownership Shifting of liabilities and responsibilities Negative connotations of rights and conventions Increasing demands of community members with water sources Representation of women in managing conflict Materialism replacing a sense of community Community-based conflict management Conflict cause and effect analysis Mobilisation of social and political leaders Conflict management strategy Adoption of win-win and negotiation strategies Code of conduct Legal the last option of conflict management Conclusion 33

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5 Executive summary The importance of the rights to water and sanitation in ensuring people s wellbeing and dignity is increasingly acknowledged globally. These rights are included in the constitution under draft of Nepal, reflecting a political and financial commitment to increasing access to water in the country. Empowered local communities are also more aware of their rights than ever before. However, this increased awareness of the right to water is resulting in conflict over water sources and programmes. People are becoming vocal in their demands for safe water while communities, private landowners and local governments are often unwilling to provide or share water sources. To analyse this water source conflict in detail, WaterAid in Nepal, in partnership with the Federation of Water and Sanitation Users in Nepal (FEDWASUN), carried out a study covering 146 cases across 12 districts. The study showed an increasing trend towards water source conflicts in recent years. There were various reasons for this. The major cause was found to be increasing water scarcity, although disputes were also seen in areas where there was an abundance of water. It was found that 29% of conflicts arose because empowered communities did not want to share their water sources. Further reasons for conflict included political disputes, negative use of legal frameworks and the increased influence of urban societies on rural communities. A strong emphasis on the economic and political benefits of access to water was also noted. The analysis showed that some community members were taking steps to manage water source conflict, although women were often excluded from this process. Cause and effect analyses followed by stakeholder identification and consultation were being carried out to define compromising strategies and a code of conduct. Legal measures were also being investigated if there were no other options left to solve the conflict. The study opened up avenues for several other investigations. It indicated that more analysis is required in the area of community-based water source conflict management and water source-based climate change mitigation and adaptation. Recommendations included strengthening legal frameworks on water source ownership to avoid conflicts caused by misunderstandings around who owns a water source. Our findings indicated that Nepal faces a real challenge in translating the legal commitments made by the Government into action on the ground that will realise people s right to water.

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7 1 The right to water Eight of the ten highest mountains in the world are in Nepal. The Himalayas are the third greatest reservoir of water globally after the snow mass of the North and South Poles. It is estimated that 3% of Nepal is covered by water in the form of rivers, lakes and ponds. However, in a country abundant with water sources, water scarcity is rising. Water is essential for life and therefore extremely valuable. It is a foundation of poverty reduction and crucial for wellbeing and development. There is also growing global recognition of the role of the rights to water and sanitation in ensuring people can live with dignity. These rights are intended to provide everyone with adequate, safe, attainable and affordable water and sanitation without discrimination or predisposition. Water as a basic human need was first formally recognised at the United Nations Water Conference in Mar del Plata, Argentina, in An action plan stating everyone had the right to access drinking water based on their basic need was later confirmed in Agenda 21, adopted at the United Nations Conference on Environment and Development in The Committee on Economic, Social and Cultural Rights adopted General Comment No 15 on the right to water in November The right to water was defined as the right of everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses. It should be noted that the International Covenant on Economic, Social and Cultural Rights did not mention the right explicitly but the committee recognised the essential nature of the right to water as a basic element of the right to an adequate standard of living, the right to adequate food and the right to health.

8 8 Emerging water source conflict in Nepal: An analysis from water right perspective In 2006, the Sub-commission on the Promotion and Protection of Human Rights adopted guidelines for the realisation of the right to drinking water. Article 12 (2) of the International Covenant General Comment No 15 and the Sub-commission Guidelines, taken together, explain that the rights to water and sanitation include the following: Sufficient water: Water supply for each person that is continuous and sufficient for personal and domestic uses, which normally include drinking, personal sanitation, washing clothes, food preparation, and personal and household hygiene. The World Health Organisation (WHO) estimates that between 50 and 100 litres of water per person per day is needed to meet most basic and hygienic needs. Clean water: Safe water that, in particular, is free from hazardous substances that could endanger human health, and has a colour, odour and taste that is acceptable to users. Accessible water and sanitation: Water and sanitation services and facilities that are accessible within, or in the immediate vicinity of, each household, educational institution or workplace, are in a secure location and address the needs of different groups, in particular threats to the physical security of women collecting water. Affordable water and sanitation: Water and sanitation that can be secured without reducing any person s capacity to acquire other essential goods and services, including food, housing, health services and education. Access to information and participation: Each policy, programme or strategy concerning water and sanitation is to include, as an integral element, the right of all people to participate in decision-making processes that may affect their rights. Special efforts are to be made by governments to ensure the equitable representation in decisionmaking of marginalised groups, in particular women. Communities have the right to determine what type of water and sanitation services they require and how to manage those services. All people will have full and equal access to information concerning water, sanitation and the environment. Accountability: Persons or groups denied their right to water and sanitation have access to effective judicial or other appropriate remedies, for example courts, national ombudspersons or human rights commissions. on Economic, Social and Cultural Rights on the right to health was extended to the underlying elements of health, including access to safe drinking water and sanitation. General Comment No 15 and the Subcommission Guidelines provided definitions of sufficient, clean, accessible and affordable water and sanitation to support the realisation of the rights to water and sanitation. The right to water is recognised in other human rights treaties as a basic factor affecting the right to an acceptable standard of living and the right to health. On 28 July 2010, the rights to water and sanitation were formally recognised in a UN resolution for the first time, and acknowledged as fundamental elements for protecting all human rights. The resolution demands states and international organisations increase financial investment, capacity building opportunities and technology transfer to support mainly developing countries in increasing access to safe, clean, accessible and affordable drinking water and sanitation for all. The United Nations Human Rights Council adopted a resolution affirming water and sanitation as human rights on September This resolution calls on states to develop appropriate

9 International human rights treaties detailing specific obligations related to access to safe drinking water and sanitation include: The Convention on the Elimination of All Forms of Discrimination against Women, adopted in 1979 (article 14 (2)). International Labour Organisation (ILO) Convention No 161 concerning occupational health services, adopted in 1985 (article 5). The Convention on the Rights of the Child, adopted in 1989 (articles 24 and 27 (3)). The Convention on the Rights of Persons with Disabilities, adopted in 2006 (article 28). tools and mechanisms, which may encompass legislation and finance, in a transparent manner, targeting more to vulnerable and marginalised groups to achieve the progressive realisation of the human rights to safe drinking water and sanitation. The Third South Asian Conference on Sanitation (SACOSAN III) Delhi Declaration in November 2008 recognised the rights to sanitation and water. Repercussions of the UN Resolution on Water and Sanitation were evident in the SACOSAN IV Colombo Declaration (April 2011) that stated the aim,...in light of the recent UN resolution recognising the right to sanitation, to work progressively to realise this in programmes and projects and eventually in legislation. Nepal is in the process of drafting a new constitution. Increased global recognition of water and sanitation rights has played an important role in advocating the relevance of Emerging water source conflict in Nepal: An analysis from water right perspective 9 these basic rights to the ability to live dignified and healthy lives. It has been reported that sanitation and water rights have been incorporated in the draft constitution. The constitutional provision would support in developing legal frameworks, periodic review and financial allocation for the sector. It could be argued as one step forward in redefining policy and commitments. Recognition of rights in black and white should be considered as the first step to creating a favourable environment for realising them. The state has the primary obligation to protect and promote human Two schools of thought on constitutional rights Pro-rights groups argue that having rights in the constitution has several benefits: Parliament becomes accountable and progress has to be reported to a parliamentary committee. During budget formulation, sectors relating to constitutional rights must be prioritised. While not necessarily judicial rights, constitutional rights can be prioritised and achieved progressively. Rights show the highest level of political commitment, adding value to advocacy and influencing and facilitating the realisation of services from a rights perspective. A second school of thought, promoted by spokespeople like the economist David Zetland, argues that: Constitutional rights alone cannot solve the water crisis. Rights are costly to formalise, having an impact on improvements to services. Rights can be effective only where there is a functioning government. It can be possible that political leaders commit but bureaucrats cannot not provide.

10 10 Emerging water source conflict in Nepal: An analysis from water right perspective rights. In general, there are three types of obligation: to respect, protect and fulfil. The obligation to respect requires the state to refrain from interfering directly or indirectly with the protection of the rights to water and sanitation. The obligation of protect makes the state responsible for preventing other parties from interfering with the rights to water and sanitation. Finally, the obligation to fulfil requires the state to adopt legislative, administrative, budgetary, judicial and other remedies to ensure full realisation of the rights to water and sanitation.

11 2 Objectives and methodology of study Water scarcity results from both the drying up of water sources and increasing demand. Empowerment at community level has increased as people are more aware of their rights regarding the protection of water sources for present and future use. As a result, conflict over the distribution of water has been growing rapidly. The main objective of our study was to explore means of protecting the right to water by mitigating water source conflict at the community level. Specific objectives were: To document emerging disputes at water sources and through the distribution network at local level. To analyse the roles played by different stakeholders in water source conflict transformation. To document the best practices around the mediation of water source conflict management at local level. Federation of Water and Sanitation Users in Nepal (FEDWASUN) members were mobilised to collect and review information on various stages of water source conflict in 12 districts: Ilam, Khotang, Dhading, Makawanpur, Kavrepalanchowk, Baglung, Parbat, Gulmi, Pyuthan, Kalikot, Baitadi and Doti. Brief information on water source conflict scenarios in 146 sites across these 12 districts was collected using questionnaires. Detailed information was collected in four situations: prevalence of conflict over a long period, conflict in its initial phase, conflict being resolved, and the absence of conflict. Information on the causes and effects of conflict, together with the roles of different stakeholders in managing conflict, was collected in conflict affected areas. In the sites where there was no conflict, the role of different stakeholders in promoting effective water source management and sustaining good practice was analysed.

12 12 Emerging water source conflict in Nepal: An analysis from water right perspective FEDWASUN representatives were provided with questionnaires for collecting the information with stakeholders at the community level. The local team members identified potential sites for collecting information as per the requirement of the study and the report was prepared using an agreed framework to ease compilation at the national level. FEDWASUN National Secretariat prepared the national report and more detail was added using analysis from the national consultant. The report was later edited and updated by the Advocacy and Research Team to ensure good quality reporting based on the findings on the ground and an analysis of rights at the national and global levels.

13 3 Diverse reasons for emergence of conflict The majority of the conflicts recorded represented cases from 2000 to The graph below indicates the increasing trend of water source conflict Availability of water sources and multiple usage Water scarcity was found to be a crucial reason for the increase in conflict over water sources in communities. The study revealed that only 26% of the sites had surplus water and were able to plan for further distribution to wider communities. The remaining 74% had sources that were extensively used or used to their maximum extent without any possibility of extension. An analysis of cases without conflict or solved conflict clearly indicated that water availability was the main factor in facilitating water source conflict management. An increasing trend of sources drying up was prevalent in almost all localities. There were incidences where water sources were being used by other communities far from the source as they did not have an alternative. These situations were stable as long as there was enough water for people dwelling near the source. The shrinking water availability forced the community living near the water source to curtail the distribution of water within their locality to other community members. Figure 1: Emerging trend of water source conflict Figure 2: Inter-linkage of conflict and water availability No conflict Solved conflict s 1990s 2000/10 Conflict 80 As per capacity% Less than capacity% New source%

14 14 Emerging water source conflict in Nepal: An analysis from water right perspective Small water sources not fulfilling community demands Daugha 6, Gairikhutta, is a village in Gulmi where there was a scarcity of water sources. Women had to travel long distances ranging from 15 minutes to 1 hour to fetch water. There was a small water source in another ward, Daugha 5, Dharapani. It was situated on private land and used for distributing water to a family of three and their agricultural land. Photo 1: Water source in private Photo 2: Agricultural field near the source The landowner did not agree to grant access to the source. He sold the land to a person who was also not ready to share the water source, as he wanted to use the water for his field. On visiting the water source, it was found that the source was very small for community distribution. Source conflict and infrastructure destruction Pachanali village in Doti district did not have a water source. Therefore, the community had used the water source of Garudhi, located in Bhuimara village, since The agreement to use the water source was based on a consensus meeting held among community members from two villages, the local administration and civil society. After 30 years, people from Bhuimara destroyed water distribution infra-structures such as intake tanks and pipe channels because, they argued, the water source was drying up and they could no longer afford to share. During our survey, the conflict had not been addressed despite efforts from local leaders, political representatives and civil society members. They were strongly of the opinion that the community near the source should be the first beneficiary. There were also incidences of communities destroying water distribution infrastructures. The conflict arising from scarcity was made worse in some instances by infrastructure being developed in one locality to meet the increasing demand for water. There was a well established belief that community members would extract more water if the system was upgraded. This belief became a reality when there was reduction in water flow after maintenance, leading to increased conflict among community members. It was easy to communicate the legal entitlement of drinking water having first priority over other uses of water. Although there was sometimes conflict over multiple usage of water among community members, they generally accepted that drinking water was the first, essential component. However, they were not in a position to sacrifice irrigation services as that affected their right to food. If the source was present in one community and they had to distribute water to another community curtailing their own irrigation services, then there was higher tendency for conflict.

15 Emerging water source conflict in Nepal: An analysis from water right perspective 15 Maintenance of water scheme leading to conflict Semjong village in Dhading district is populated mainly by Tamang, an ethnic community. Residents of Ward 3 and Ward 5 were using a water source at Chimarkhola, since 1985 and 1995 respectively. The water system in Ward 3 was maintained in 1998, reducing the water volume in Ward 5. This created conflict and despite interactions and consultations the communities could not find a solution. Constantly evolving issues of water source management Pala VDC in Baglung district comprises 622 households with 85% water coverage and 80% sanitation coverage. Dhuwa Khola water scheme was reported by the district development committee as an accomplished project during 2005 even though water distribution was not completed. FEDWASUN in Baglung encouraged community members to lobby the District Water Supply Office to raise awareness of the situation. With several rounds of discussion and negotiation, the government officials were ready to provide a 1,200m pipe and technical supervision to complete the project. In the course of inspecting the water source, there were two pipes; one was a small pipe directly connected to a nearby house belonging to a past village development committee chairperson who seemed to be highly influential. He had managed to add the extra pipe in such a way that he would first receive the water. The water would only flow through the other pipe when he would close a stop valve made using a wooden stick. He argued that it was agreed that the community would use the leftover water of his household as his was the nearest house to the source. It was quite unique to witness this kind of claim over the source despite the fact that he was not owner of the land where the water source was. He was strongly in favour of having a separate connection to the water source to ensure he would get more water than the community, affecting households including 12- Photo 3: Discussion at community 14 dalit households. After some argument, he seemed to agree to use the common connection with an arrangement to ensure good flow of water from the current water spot. He was not the only one to lay claim over the water source. There was also a young farmer who argued that, No one can use this water without giving water to irrigate my land. He was adamant that he did not want to suffer from low productivity in order to distribute water to other people. These cases clearly indicated that organisations like FEDWASUN should be constantly engaged with the community members to address new issues and debates over time.

16 16 Emerging water source conflict in Nepal: An analysis from water right perspective Conflict was reported both in scenarios where there was scarcity and an abundance of water. Therefore, it is not wise to expect that enough water would always solve cases of water source conflict. There were incidences of conflicts despite adequate water. It was revealed that local community members had become good at protecting their water source for future usage. They were found to be reluctant to share water with other communities, as they had witnessed drying up of sources that were used extensively by a larger population Managing ego and revenge over past exploitation The empowerment of marginalised communities, especially ethnic communities, could be considered as Nepal s biggest development achievement. Education is another booming development sector. The majority of empowered communities realised the relevance of education in their overall development. This realisation had benefited young people with educational opportunities. The combination of education and empowerment had increased the confidence of people in ethnic communities. However, empowerment was found to lead to conflict in some cases. While 29% of the conflicts studied arose due to disputes with the community, 14% were due to personal clashes. Empowered ethnic communities told of how the high class caste had previously exploited them due to their ignorance. In cases where ethnic communities had control of water sources, they did not want to share for free to the high caste community who at one time used to exploit them. They were quite sure controlling the water source was the easy means for taking revenge. Having a water source on private land or in a community was seen as a key asset that increased superiority and power. In some instances, conflict over using the water source raised questions about why there had not been prior consultation, requests and negotiation. There was an overall feeling that the owner of the land had the full right over the source and they could claim any amount for allowing use of the asset Dealing with political disputes In one of the communities we visited, someone joked, There is not even a single Nepali; there are just political cadres [radical activists]. In some cases the reasons for water source conflict are

17 Emerging water source conflict in Nepal: An analysis from water right perspective 17 Complexity of water source conflict Rate Kholsi Bhirkharka Gramin Khanepani Ayojana (Rural Drinking Water Project) was terminated due to water source conflicts between the community with the water source (Wards 5 and 6) and the community where the project was supposed to be implemented (Ward 8). The former community comprised mainly of Limbu, an ethnic caste, while the latter was dominated by Brahmin and Chhetri, so called high caste. The water source, situated in a forest in the community, was registered with due approval from Yom Bomjan, the former president of the community forestry. However, later the process of approval was questioned by the users of the community forestry and the president had to resign from his post. The new president was pressurised by the user committee to discontinue approval and the conflict had arisen between these two communities. The drying up of the source and the need for water for farming was the reason given by the people. In a formal discussion, water scarcity was put forward as the major cause of the conflict. However, informal side talks revealed that egos were also to blame, with the community members who had the water source believing they should be treated as superior while other communities should be begging for the water. The community with the water source was comprised mainly of ethnic people who felt they should prevent exploitation of their water sources by other communities comprising mainly of higher caste people. The conflict involved a complex mixture of caste issues, political ideologies, feelings of superiority, conventions designed to protect the rights of indigenous people, and the drying up of water sources in relation to increasing demand. Photo 3: Discussion at community easy to see such as water scarcity. However, others are less obvious, like the clashing of political ideologies. It was reported that a community affiliated to one party seemed reluctant to share a water source with another community that had different political ideologies. Where there were conflicting political perspectives it was found that even political leaders had difficulty convincing the community members to end their conflict. Conversely, if different community members belonged to the same political party it was relatively easy for political leaders to mitigate the conflict. The increased empowerment of communities has also added to conflict in some cases. Community members with high political awareness were more likely to challenge their political leaders.

18 18 Emerging water source conflict in Nepal: An analysis from water right perspective Emergence of conflict based on different political ideologies Bhelchada Silgadhi Drinking Water Project in Doti was a registered project under the national budget, provisioned through the National Planning Commission. The constituent assembly leader elected from the constituent area was a strong political leader from one of the prominent parties. He had made serious efforts in incorporating the project in the national budget. Around two lakh were invested in conducting the survey last year. In the current fiscal year, around 22 lakh were allocated to the water scheme. Bhelchada source was situated in Khaptad National Park and flowed along the Gaddhigad rivulet that passes through several villages, including Banaleskh, Kada Mandau, Gaihra Gaon, Sana Gaoun and Khir Sain. The water scheme was supposed to benefit those living in Dipayal Silgadhi, the district headquarters of Doti. The leader of an opposing political party filed a complaint against the project at the district council level highlighting the negative impact of the project on an existing hydropower project. The current capacity of the river is 45 litres per second and only a third of the capacity would be used. Difference in political ideologies was one of the main reasons for this conflict. It complicated the negotiation process and made managing the conflict difficult. Rural community safeguarding its water source In order to meet an increasing demand for water and address water scarcity in Baglung municipality, it was planned that a water source in Achete 1, situated in Bhimpokhara village, would be used. Rural community members were not happy with the idea of extracting water from the source for urban dwellers, as it could affect agriculture, the main source of their livelihood. There was a secret meeting of high calibre political party representatives on the top of a hill with no community involvement. The outcome of this meeting was that the water source would be used without their consent. The community were furious and strongly opposed progress without their consent. Photo 5: Water source in conflict The rural community members were empowered and in a position to prevent water being used by other communities. However, they were themselves using water that flowed from another community. They did not have an answer to the question of what they would do if one day people from the other community also revolted in a the similar way against the municipality leaders.

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