Staking a Claim: Politics and Conflicts between Statutory and Customary Water Rights in Nepal

Abstract

Subsequently published as:

Pradhan, Rajendra, and Ujjwal Pradhan 1996. "Staking a Claim: Law, Politics and Water Rights in Farmer Managed Irrigation Systems in Nepal." In, Joep Spiertz and Melanie G. Wiber (eds.) The Role of Law in Natural Resources Management, pp 61-76. The Hague: VUGA Uitgeverij B.V. This is a special issue of Recht der Werkelijheid, published from the Netherlands by the same publisher (VUGA).

"This paper explores two sets of issues: first concerning the consequences of state intervention and the second concerning the significance of law, for water rights. It discusses the (un)intended consequences of state intervention in farmer managed irrigation systems for water rights: the customary rights of the existing rights holders are no longer secure and made secondary to state rights. Further, opportunities are provided for new claimants to stake claims to water rights in irrigation systems or water sources from which they had been excluded.

"The second set of arguments concerns the significance of law and the relation between law and social relations in staking claims, conflicts and disputes, and alteration of water rights arrangements. Law confers legitimacy to claims and rights but it does not by itself guarantee or alter water rights. Further, the question is not only whether to use law but which law to use and how and where claims are to be asserted. In legal plural situations, claimants can use different legal orders and normative repertoires (customary law, state (statutory) law) and different forums to justify, assert or protect their claims. Whether and how claims are made, accepted, disputed, or water rights arrangements altered depend not only on law but equally, or more importantly, on social relations between the claimants (relations of power, political rivalry, patronage, kinship ties, etc.). The claimants are influenced more by 'political' considerations than purely legal ones in their selection of law and methods to assert and protect their claims.

"The paper briefly reviews the relation between state and locality in the development and control of water resources, especially for irrigation, and several water rights related state laws. This is, followed by a discussion of claims, claimants and the normative repertoires (law) used to justify claims. We then describe several cases of conflicts and disputes between different claimants to property and water rights in a water source and an irrigation system. The concluding section discusses some issues raised by the case study concerning water rights and the study of water rights."