Contents>> Vol. 1, No. 1
Water Rights and Social Justice in the Mekong Region
KATE LAZARUS, NATHANN BADENOCH, NGAA DAO and BERNADETTE P. RESURRECCION, eds.
London and Washington, D.C.: Earthscan, 2011, 285 p.
My attention was immediately attracted to the book’s case studies of water rights and social justice of the Mekong region, because for many years, I have been waiting for the publications reflecting on the reality of natural resources management in this river region, and this book offers much food for thought on the issue of management of natural resources, including water. The cases cover the planned cross-border water transfer from Laos to northeast Thailand, the Son La hydropower project in Vietnam, the watershed resources management in northern Thailand, the fisheries-aquaculture across the Mekong region, the craft village in Hanoi, and the possible impact of climate changes on the rights of the upland people (the severe droughts in southwest China in the period of 2009–11 and the on-going flooding in Vietnam, Cambodia and Thailand in October 2011 seem to be confirming the authors’ climate change prediction).
I would like to make corrections, however, of two concepts of the book. Firstly, the “Tibetan Plateau” used in Jianchu Xu and Rajesh Daniel’s two chapters (pp. 197–242) should be the Qinghai-Tibet Plateau. Secondly, the Mekong region should not be over-extended to include other river basins such as the Son La hydropower project and the craft village in peri-urban Hanoi in Red river basin, the Hmong and Karen villages of Chiang Mai in Ping river basin, a tributary of Chao Phraya river in northern Thailand, and the fisheries-aquaculture in Lijiang, a part of Yangtze river basin in China’s Yunnan as well as provinces in Red river basin of northern Vietnam (pp. 1–2, 39–64, 67–89, 91–113, 116, 118–119, 121–125, 133, 167–194, 206, 209).The Mekong issues are best illustrated by the region’s own cases, and those of other river regions are to be used for reference and comparison only. A correct definition is found in the two maps in Hori Hiroshi’s book (1996, 3–4) and in the Mekong River Commission’s frequently used maps.
Regrettably, the cases fail to cover the Mekong river delta, especially the dams and navigation on mainstream Mekong river. With the killing of 13 crew members of two Chinese cargo ships on the Mekong river on October 5, 2011, the question of who should protect local people’s water use rights is raised once again.
However, the book has merit in its exposition of three keywords: water rights, social justice and the Mekong region. Nathan Badenoch et al. claim that “this book focuses on the complex nature of water rights and social justice in the Mekong region . . . in the hope of bringing to the forefront some of the local nuances required in the formation of a larger vision of justice in the water governance. It is hoped that this contextualized analysis will deepen our understanding of the potential of, and constraints on, water rights in the region, particularly in relation to a Mekong-specific articulation of social justice” (p. 8). I believe that their logic behind this purpose is that water rights are not only redefined and possibly reaffirmed in the new light of social justice, but also provide some new dimensions of water rights to social justice, and the relations between them two are tested and reinforced by the Mekong region cases.
Running through the book, the water rights in the Mekong region refer to the rights of access to water, concerning both the rights of water use and of water ownership. Here, water refers to inland clean fresh water. Nathan Badenoch et al. summarize the most controversial arguments in the debate over water governance: water is treated as an economic good (such as a commodity), a legal right of humanity, and/or a common property resource (pp. 3–4).
It seems that the authors are not satisfied with these concepts. For instance, Bernadette P. Resurreccion et al. quote other authors’ work to explain in greater detail why the neo-liberal policy environment now in the Mekong region is defective, because it prefers economic rationality and efficiency as the most suitable development paradigms for water management while neglecting social welfare, livelihood security and environmental sustainability goals (p. 250). This, with Bernadette P. Resurreccion et al. ’s analysis of three detailed reasons for those water injustices (p. 248), could be regarded as the major reason for the occurrence of social injustices in the Mekong region.
Thus, Nathan Badenoch et al. hold that the authors of this book “take a broad approach to water rights, writing about not only rights directly associated with access to water but including other rights that affect people’s ability to access the areas of governance, through formal and informal means, that affect water resources decision-making” (p. 4). For this purpose, they move from “the legalistic exercise of creating laws and decrees” to “an analysis that is more firmly rooted in real-life, real-time challenges of implementing, adapting and revising these arrangements for water rights, among the sectors of society that face the most serious barriers to exercising those rights” (p. 4). In my understanding, as the chapters of the book suggest, the direct rights are the rights to use water for drinking, farming irrigation, fishing, crafts-making, hydropower, etc., and the other rights that ensure the direct rights include food right, public participation in decision-making, which can be extended to information provision, openness or trans parency, consultation, legitimacy, etc. In doing so, water rights are enlarged in the framework of social justice.
I do not think the authors make any new definition of social justice, just as Nathan Badenoch et al. assert that the authors “do not seek to propose any model of social justice for the region.” However, they do present a very clear-cut case for the importance of social justice as both framework and goal of water rights.
Nathan Badenoch et al. conclude that “the outcomes of water governance are a crucial concern for justice within society”(p. 13), and their “perspective underscores the importance of outcomes in terms of equity rather than efficiency” (p. 4), which, I feel, is similar to the consequentialism of Jeremy Bentham’s utilitarian justice. Indeed, they select two kinds of justice: distributive and retributive justices. Nathan Badenoch et al. agree with the argument that “social justice is not concerned merely a narrow conception of the benefits to individuals, but rather with what is good for the society as a whole,” and the special focus is given to the groups of people marginalized from the areas of governance (p. 5), making their concept, I think, different from Bentham’s justice of the greatest happiness of the greatest number, and similar to Immanuel Kant’s justice of categorical imperative, and their principles of justice are those of distribution, desert and equity. Nathan Badenoch et al. continue to state that “this book takes livelihood security as a departure point for its exploration of justice and rights” (p. 6), so I consider that livelihood is regarded as the end result of water rights, and water rights as the guarantee of such a livelihood security. To be sure, equality means equality in social benefits, cost or burden, and risk in an attempt to dismiss the phenomenon of some people being more equal. This social justice of equality is not new, since there are some echoes of justice in world-wide poverty alleviation efforts, such as UN’s Millennium Development Goals and Targets/Indicators, for which purpose some works have been published in this aspect of social justice of pro-poor endeavours (Chambers 1983; United Nations 1995; MacCaskill and Kampe 1997; Sen 1999; Mingsarn and Dore 2003). To be politically correct, one has to be, or pretend to be, welfare- and livelihood-oriented in presenting social justice.
The novelty of the authors’ contribution consists of the fact that they do apply the idea of social justice to water rights in the Mekong region. The reason, I deem, is that the authors identify inequalities in the allocation of water rights and expect the pursuit of social justice to yield an alternative solution to issues in water rights. Therefore, the dimensions of social justice are enlarged with water rights, and in my view it is perhaps Nathan Badenoch et al. ’s so-called larger vision of justice in the water governance.
Nathan Badenoch et al. write that the authors do not follow John Rawl’s mainstream philosophy of justice but Amartya Sen’s “more realistic ‘idea of justice’—one that focuses on eliminating injustice” (p. 5; Sen 2009, 106). From my viewpoint, it makes no difference in identifying justice or injustice, because they are two sides of a common coin, and when judging justice or injustice, you have to use the same principles. But proceeding from the concept of injustice hopefully leads to the creation of a sense of urgency to eliminate injustice, i.e. translate justice into reality. Thus, the authors also suggest how to remedy or eliminate them.
Firstly, to reassess the parameters of the former justice based on economic equality only, and to base justice also on social equity and welfare (p. 247).
Secondly, to politicize, not to de-politicize, water governance, i.e. to influence the decision-making mechanism (pp. 248–249).
Thirdly, to build capability on the part of the marginalized people, i.e., to reconfigure “policies, norms and material endowments” that “enable stakeholders to share power” (p. 251). For capabilitybuilding, I suggest that readers also consult other works (Sen 1999; Comin et al. 2008).
Fourthly, to improve institutions of water governance by seeking “more than mere efficiency and effectiveness” and by moving “beyond a simple conception of social justice as the logical outcome of a general idea of water rights can help move towards a more practical vision of change in the governance of the Mekong region’s water resources” (p. 13). The case studies in this book do explain in detail how to improve the institutions when it comes to water rights and social justice.
I believe that in the case of institutional improvement, it is a must to give expression to such social justice and equality in the institutional design or redesign of water rights. In the present-day period of historical development, besides moral restraints, a social contract that promotes social justice is still one of the most effective ways of ensuring justice between sectors of a given society. Self-discipline is neither universally applicable nor available. Thus, it is not very suitable to simply move from “the legalistic exercise of creating laws and decrees” (p. 4). In my own review of water resource laws of Laos, Cambodia and China, I find that their purposes are to attain socio-economic development and the welfare of the people, to ensure the people’s living requirements, or to meet the need of national economic and social development. These points suggest social justice in the water rights. For these purposes, these laws also stipulate the rights and, more importantly, duties and obligations of water users, i.e. water is the property of the people or the state, and its users are obliged to protect the water resource (The National Assembly of Lao PDR 1996; The National Assembly of Cambodia 2007; The National People’s Congress of the People’s Republic of China 1988). The rights, duties and obligations are likely to avoid the frequently cited “tragedy of the commons.” The laws at least ensure, in Rawls’ words, “procedural justice” (Rawls 1999: 73), and the rights-based approach suggested by Jianchu Xu and Rajesh Daniel (pp. 226–230) and Nathan Badenoch et al. (p. 68) could work. Other improvement approaches could be also considered as complements, such as water trade, transfer of water rights, water rights as share capital (Tang and Deng 2010; Crase 2011), transactional cost (Saleth and Dinar 2006, 273–306) as well as new paradigm and environmental justice in natural resources management (Wescoat et al. 2002; Bryant 1995; Knight and Bates 1995).
However, I do not believe that the institutional improvement in water rights is the only passport to the realization of social justice even if there are pro-justice constitutions or water laws in place. It is difficult to make laws, but it is more difficult to strictly enforce them. This phenomenon of gap between rhetoric and practice is found in the cases of water transfer planning from Laos to northeast Thailand presented by Philipe Floch et al. (pp. 19–38), the Son La hydropower project presented by Tran Van Ha (pp. 39–64), the Pak Mun dam on Mun river in northeast Thailand which was and is protested against by local people (Kanokwan and Srisakra 2006, 128), and the lowered quality of life among some involuntary resettlers after Manwan dam was built on the mainstream Mekong in China’s Yunnan (Guo 2008, 202–277). In China, government officials, hydropower developers and some academics have united in arguing with environmentalist NGOs for building hydropower dams on the three rivers of Lancangjiang (the upper reaches of the Mekong river in China), Nujiang (the upper reaches of Salween river in Yunnan), and Jinshajiang (the upper reaches of Yangtze river in Yunnan). The reason for the pros and cons is local people’s livelihood (Feng and He 2006). With this real-life and real-time Rashomon-like scenario, one has to wait and see who will get the upper hand now on Nujiang river, because quite a number of hydropower dams were and are being built on Mekong and Yangtze rivers, including the Three Gorges dam, and Xiluodu dam which will be China’s second largest and the world’s third largest dam.
Consequently, it may well be asked: Who will build the capability of the marginalized and thus helpless people in the rights of water access when there are many competing claims over water resources among multi-stakeholders or invested interests? In a region where the jungle law rules and the survival of the fittest prevails, can anybody reshuffle, by taking the parliamentary road, by resorting to nonviolent resistance or by making violent revolutions, the gangster logic of “might is right”?
Chen Jianming 陈建明
Faculty of Management and Economics, Kunming University of Science and Technology, China
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