Most water law reform processes focus singularly on statutory law. However, in many countries, a plural legal system is in place, whether it is officially recognised or not. Especially in rural areas and among indigenous peoples, customary laws and practices provide the rules that define people’s lives and interactions. They are relied upon in developing access to and use of natural resources, especially water, and in resolving management conflicts. In many places, this is true even if customary practices contradict statutory law and adherence to them is penalised. If lawmakers and project managers who aim to promote IWRM ignore customary law and practices, implementation failure may occur or negative consequences may result for individuals and groups who were better served by customary-based systems – especially the poor.
Customary law can be defined as evolved rules and practices that enable community members to distinguish between acceptable and unacceptable behaviour. It includes conventions and usages that people adhere to and methods for dispute settlement. Customary law is generally produced by repetition in time, and transmitted through socialisation. It is carried out by a specific group of people in a certain territory, where the people – or part of the people – accept those rules as binding upon them for any length of time. Customary law is often tied to religious beliefs which reinforce compliance. Other mechanisms for penalising misbehaviour include monetary fines, public humiliation or even ostracism by the community.
Since customary law is constantly evolving and can differ from place to place and from community to community, no uniform or final description can be given. However, customary law for water resources is often linked to land rights and the protection of local biodiversity, since those tend to encompass soil, sub-soil and linked water resources. Land and water usually belong to a spiritual entity or to the community, not the individual. Land is normally held in communal trust but in some case can also be apportioned by a chief, village elders, or other figures of authority.
Land titles and related water rights are passed on through generations, but can also be acquired through fees and payments in kind. Developing a water source (e.g. digging a well) or helping to maintain water infrastructure systems also entitle a person to use the resource. Customary law can also include provisions for when a water source is shared between different communities, such as the understanding that bathing and washing take place downstream of where drinking water is extracted, for example.
Customary practices follow an inherently integrated, holistic approach. They usually conceive of natural resources as part of an intertwined system in which rights and obligations relating to ecological, spiritual, cultural, economic, and social dimension of life are not differentiated. Consequently, customary law can provide new ideas, values and responses to the preservation and protection of water resources, and assist implementation of precautionary principles. The inclusion of indigenous practices and knowledge can also be helpful in setting a baseline for environmental and cultural flows (see C2.04), for example by providing standards and targets that are in accordance with the practices and values of affected communities. The indigenous practices in terms of harvesting water related resources, including fish and other marine and aquatic products, tends to be particularly marked by this holistic and spiritual vision.
Even though Principle 22 of the Rio Declaration on Environment and Development specifically recognizes the importance of indigenous customary law for environmental protection and sustainable natural resource management, modern domestic statutory law often doesn’t reflect that. Customary law is either entirely ignored or considered as a set of second order rights, to be met by policy objectives after other claims have been satisfied. In some countries, customary law is recognized on a case-to-case basis, as a normative system but not as a competing legal system. The third option is official legal pluralism, which recognizes both statutory and customary law. Further direction on integrating various legal frameworks is provided in A2.04.
When designing and implementing IWRM policies and plans, it is important to take into account the social norms of the local peoples (i.e. customary law) and ensure that the new plans don’t clash with those practices. If they do, dialogue with the communities needs to be initiated to garner support for the new policies and to make sure they don’t disadvantage weak groups that were protected in customary schemes. One mode of reconciling new management projects and customary law is to consider the Cultural Health Index (CHI) in decision making. The index uses various weighted factors that are determined by the community/the indigenous peoples themselves and thus reflects core concerns, rights and interests.
- IWRM plans which fail to take into account customary practices are likely to lead to counterproductive results and unsustainable practices.
- It is vital that IWRM-linked loans that wish to regulate the use of water resources through statutory law do not drive out plural customary laws without consideration. Such arbitrary rejection of customary practices can have severely negative consequences for individuals and groups who have been better off under the customary system.
- Conflicts that arise in relation to IWRM are often due to a discrepancy between expectations and ideas regarding property relations that go back to customary systems, and rights and privileges flowing from individualisation and registration.
- Customary law can differ from place to place, even within one ethnic or language community.
- The scale on which customary law applies may not be the same as those of statutory law. For instance, IWRM legal frameworks normally focus on a basin-wide approach while customary law is concerned with people(s) and not necessarily geographic units of analysis.
- To consider customary law in IWRM means to respect cultural heritage and the right of traditional culture to exist, and this can contribute to the Sustainable Development Goal (SDG) 16: promote just, peaceful and inclusive societies.