1. Water policy in India has effectively become water law as there is no comprehensive water law at the national level, only sectoral laws, and policies have directly shaped implementation and reforms. 2. The right to water is recognized in case law but drinking water policy, not law, has defined entitlements like 40 liters per capita per day. 3. There are challenges to using policy instead of law for governance as policies can be changed without formal legal process and may not comply with legal principles.

1. Is Water Policy The New Water Law? Reflections on India ’ s Experience Philippe Cullet Professor of international and environmental law SOAS – University of London [email_address] Some for All? Pathways and Politics in Water and Sanitation since New Delhi, 1990, 22-23 March 2011, IDS

2. W ater law – international level Limited development of international water law Existing convention focusing on international watercourses UN Watercourses Convention not in force Other developments either in other fields (human rights) or non-binding (quality standards) More evolved at regional level, eg UNECE convention and protocol

3. Broader international framework Other water uses largely addressed through soft law instruments UN agencies not having the same lead they have, eg in the environmental field Principles adopted, eg Dublin Statement not even endorsed by UN General Assembly Principles of water sector reforms also adopted by development banks

4. International-national level interactions Starting point: soft law not binding In practice: immediate link through conditionality, in particular law conditionality (imposed adoption of certain water laws) Conditionality fosters transformation of non-binding policy into law, direct from the international level

5. India – water law Well established fundamental right to water in case law No framework water law at union/state level setting out principles for realisation of right Multiple sectoral water laws (irrigation, groundwater, etc), laws concerning water supply (eg municipal acts) but largely operational aspects

6. Drinking water – from law to policy instruments Absence of legal framework addressed through variety of policy instruments Union level Accelerated Rural Water Supply Programme, 1971-2009 National Rural Drinking Water Programme, 2009-

7. Salient features of policy framework ARWSP – no reference to right to water but framework for implementing it Individual level Scope of entitlement partly defined (eg 40 litre per capita per day) Broadly conceived entitlement (eg included maximum distance of source 1.6km) ARWSP transforms into NRDWP ‘ effortlessly ’

8. Consequences of move from ARWSP to NRDWP Policy changes without formal procedure Policy was not formally linked to right to water, thus can move away without ‘consequences’ New framework (NRDWP) moves away from individual to household entitlement ( ‘water security’) ‘ Displaces’ the 40 lpcd entitlement

9. New role of policy envisaged under reforms State water policy different in nature from union since constitutional competence no bar to framework law Policy as the general framework within which law ’s function is to ‘police’ and ‘enforce’. eg: ‘ Water policy framework is consolidated by water law. (…) For water management to be compelling over time, it needs a policy that defines principles, actors and processes. These can then be moved to an enforceable set of decision-making requirements through the law. ’ (IUCN, 2009)

10. Policy and/as law In principle policy as broad lines of the legislation the government intend to introduce. cf. use of state water policy in regulatory authority acts as reference framework Where no law, question around repeated use of policy (cf revision National Water Policy 2002, 2010- ) Absence of framework law (for different historical reasons) may now be used to justify an instrumental use of law: eg ‘ Legislation is distinct from, but complementary to, policy ’ (IUCN, 2009)

11. Challenges Where policy sets ‘ legal ’ principles, policy must still comply with legal order (despite absence of legislation) Problem of water policies authorising ‘ reorganisation ’ of priorities Water as a test case for a new governance model where law (legislature) is subsidiary to policy (executive) while at the same time major law reforms are introduced in the water sector (selected use of law, eg for institutional reforms but not framework drinking water legislation)

12. Challenges (2) Governing by policy in the water sector a feature of domestic and international law Ongoing reforms based on policy instruments (including cases where law itself points back to policy, case of regulatory authorities legislation) Ongoing reforms based on international level water sector reform principles

13. Lessons from ongoing reforms Both national and international level water sector reforms disregard the place of law Move to give ‘ policy ’ the place of ‘ law ’ a challenge to established guarantees, law-making procedures etc Regulation through policy instruments not new but inappropriate (case of ARWSP-NRDWP) Use of conditionality to impose water sector reform principles unacceptable basis for reform