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L'ambiguïté des Commons
La règle de non-appropriation des ressources naturelles

Séminaire du 1er mars 2011

Les juristes distinguent la chose de personne (res nullius) et la chose commune (res communis). Les choses de type res nullius sont sans valeur et sans maître: le poisson et le gibier sauvage, les eaux de pluie et eaux souterraines, les fleurs et les champignons des bois, qui peuvent être captés par n'importe quel sujet de droit. Elles sont appropriables. L'indifférence du droit à l'égard de ces biens tient à leur abondance: on ne craint pas d'en manquer. Les choses de type res communis prennent naissance avec le risque de la pénurie: l'air, la mer, l'eau courante, le vent, la lumière sont des ressources naturelles essentielles; elles ne sont pas appropriables. Les choses communes donnent lieu à des conflits d'usage.

Ramaswamy R. Iyer, Water. Perspectives, Issues, Concerns,
New Delhi: Sage, 2003, Chapter 7, pp. 77-81

In writing or speaking about water, it is easy to get muddled because of its multiple aspects or dimensions. Water is perceived by different people (or by the same people in different contexts) in different ways: as a commodity, as commons, as a basic right and as a sacred resource or divinity. Often when we are under the strong influence of one perception, other perceptions seem quite wrong. For instance, those who regard water as 'commons' or a 'common pool resource' tend to deny vehemently that it is a commodity. Contrariwise, those who see water as a commodity are often blind to the other dimensions of water. The truth is that we can say many things about water and be right. Commodity, commons, basic right, divinity: all these are partial perceptions; all are valid; we need all of them to understand the roles that water plays in our lives. We need to be aware that what is true of one of the multiple dimensions or aspects of water may not hold for another. Unfortunately, at any given time, one or more partial perceptions tend to dominate our thinking, and thus leads us into drawing wrong conclusions and formulating wrong prescriptions.

1 / Water as Commodity [Marchandise]

To many of us the notion of water as a commodity seems unacceptable. However, let us consider the following cases:

a. the use of water for irrigation in commercial agriculture;
b. the use of water for cooling or steam generation or industrial processes;
c. luxury uses by the affluent (in saunas, swimming pools, gardening and so on).

Would a description of water as a commodity in such contexts be wholly inappropriate? Again a hotel may need large quantities of water for keeping operational /78/ its kitchens, bathrooms, toilets, laundry, swimming pools and other recreational facilities, and may enter into contracts with supplying agencies for bulk water supplies on a regular basis; or a farmer may buy the irrigation water that he or she needs from another farmer in the neighbourhood: in these transactions is water not a commodity? Questions of equity, social justice and resource conservation do arise in such cases, and we may wish to limit or regulate or discourage the use, or ensure that proper prices are charged; but it seems hardly possible to rule out such uses or the related transactions altogether, and to the extent that they take place, water is indeed a commodity in these contexts.

However, no one is quite comfortable with the crude description of water as a commodity, so a more sophisticated formulation has been found: water is now generally described as 'an economic and social good'… Let us note that 'good' here does not necessary have a connotation of moral approval; it is more akin to 'goods', i.e., objects of merchandise. That is not necessarily a wrong perception in some contexts, as illustrated above. However, it is indeed a wrong perception in other contexts such as water as life-support or as a common pool resource of a village community.

2 / Water as Commons [Chose commune]

The view of water as 'commons' or as a 'common pool resource' [res communis] is strongly advocated and is attractive, but two points need to be noted. The first is that the notion of 'commons' (as distinguished from private ownership) is of easy application in the context of a small lake or pond or tank or other waterbody on common land; we can think of it as owned by the community. With larger waterbodies, and with streams and rivers, difficulties begin to arise in the form of 'upstream versus downstream' issues, riparian rights [les droits riverains] and so on.

However, we can still argue that the water source belongs to the community as a whole, or to 'civil society', and that the conflicts that arise can be resolved within that overall framework (though that benign formulation tends to breakdown when rivers cross national boundaries or even political divisions within a country). The notion of commons also runs into difficulties in the context of urban water supply systems (where an agency, whether public or private, supplies water to citizens by a network of pipelines from its /78/ storages), or in that of the supply of irrigation water through canals from large reservoirs, whether state-owned or privately owned.

The notion of commons has a value even in such contexts; what we are trying to do is to deny the private or state ownership of water and to vest that ownership in 'civil society'. But does any person, body or institution—even civil society—own water? Bypassing that question for the present, we can talk about 'community management of common pool resources'.

[La notion de gestion permet de contourner la question de la propriété.]

Incidentally, we must be wary of unduly enlarging the geographical scope of the ideas of 'commons' and 'community'. If we widen the notion of 'community' to cover the State as a whole, or go one step further and encompass the entire nation under that rubric—and we might wish to do so for certain legitimate purposes—it may be difficult to resist further expansion to the globe as a whole. There are serious implications to accepting a description of water as a 'global commons' [patrimoine de l'humanité], a natural resource [ressource naturelle] that belongs to all humanity. The dangers are obvious enough.(*) When we use expressions such as 'commons' or 'community management' we usually have a local context in mind (one village or a cluster of villages constituting a watershed) and it would be better to confine ourselves to that context.

The second point is that the community is a collectivity. The idea of community management of common pool resources does not by itself imply any individual rights to water. The rights of individuals will be merely those that are agreed upon by the community (or conferred by civil society institutions) instead of being granted by the state or arising from contracts. [Cf. la distinction anthropologique entre statut et contrat.] The idea of individuals having rights to water is yet another perception.

(*) Le danger est qu'une nation dominante, ou une multinationale en position de monopole, se déclare d'autorité dépositaire et gardienne de ce patrimoine de l'humanité.

3 / Water as a Basic Right [Droit fondamental]

Water sustains life. In that aspect, it is a basic need and therefore a basic right. This does not automatically follow from a description of water as 'commons'. In the traditional societies of the past, people might not have needed the language of rights; customs and conventions would have been adequate. Indeed, some of those would have had the force of law: hence the expression 'customary law'. However, in the legalistic societies of today 'formal law' has become more important, and that is why it has become necessary to talk about the 'right to water'. We are talking about water as life-support, i.e., drinking water. As mentioned above, this is /80/ a basic or fundamental right, but is it also a 'human right'? … Water as a basic right is a useful perception, but it has the potential of being asserted not only against the state (it is in that context that it comes to be formulated) but also against the community or civil society. [Un droit individuel, un droit de la personne.] We need both perceptions (water as commons and water as a basic right) and must learn to harmonize them.

4 / Water as a Sacred Resource

The fact that water supports life, and that it is also a part of the natural environment, sustaining it and in turn being sustained by it, leads to its being regarded as 'sacred'. (This is not a reference to the ritual uses of water, though these reinforce the sacred aspect.)