2.9 Beyond the Rules II: Law Activation Strategies and Localized Regulation Arrangements

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Water Resources Management and Policy

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University of Geneva

Water Resources Management and Policy

329 classificações

Water management today is faced with new challenges such as climate change or the effects of human activity. Public and private stakeholders who are active in this field must develop new ways to better manage the water cycle "as a whole". The objective of this MOOC is to develop an understanding of the problems related to water management. Firstly, this course will define a resource and, more specifically, the resource of water. It will look at how water is used and the activities associated with it as well as any potential conflicts. The course will look at water management in detail through the analysis of the different types of rights and obligations associated with, for example, the development of a multi-sectorial regulation system or a watershed management approach. By the end of this course, our aim is to enable you to: 1) Identify the main issues and strategies linked to water resource management 2) Acquire the key reading material needed to understand the many variables (environmental, institutional and political) which affect water and which, in terms of management, may require adjustment. This course was developed by the Geneva Water Hub. Alongside researchers from the University of Geneva from a range of faculties, researchers from other universities and research centres will be involved in this course. Practitioners who deal daily with the political dimension of water management will also input into the course. This MOOC is designed for all those interested in the water sector. Prior training is not necessary to follow our program. The findings presented in this course can be easily reapplied to different contexts and to different scales of analysis. This MOOC is supported by the Geneva Water Hub and the University of Geneva along with the MOOC in « Ecosystem Services: a Method for Sustainable Development » (www.coursera.org/learn/ecosystem-services) and the one in "International Water Law" (www.coursera.org/learn/droit-eau). This course is funded by the Global Programme Water Initiatives of the Swiss Agency for Development and Cooperation (SDC). This course is also available in French : www.coursera.org/learn/gestion-eau

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Module 2: The Rules of the Resource, their Uses and their Circumvention

Businesses that manage water are guided by property law and public policy designed to define and coordinate all the demands on the resource. This second module aims to better understand the complexity of these two bodies of law through the framework of the Institutional Resource Regime (IRR). This framework is presented and then applied to two case studies (Swiss and European) to understand the rules governing water management in these territories. Finally, we will go beyond this framework to address the implementation of these rules by looking at examples of how the law is applied and examples of localised regulation. The module is concluded by a quiz worth 20% of the final grade. You must have at least 80% of the responses correct to pass the module

2.8 Beyond the Rules I: Opening the Black Box9:00

2.9 Beyond the Rules II: Law Activation Strategies and Localized Regulation Arrangements11:09

2.10 Case Study: Protection of Aquatic Ecosystem in the Canton of Valais (Switzerland)10:45

Conheça os instrutores

Christian Bréthaut
Assistant Professor
Institut des sciences de l'environnement, Université de Genève
Géraldine Pflieger
Professeure associée
Institut de Gouvernance de l'Environnement et de Développement Territorial

[MUSIC] [MUSIC] The previous section

showed us how the black box,

this black box of implementation of

political processes could be broken up into three variables: configuration of the actor,

power relations and the strategies deployed by these actors.

During this section, we

will look closer at one of these three variables

- the strategies actors deploy when faced with these rules,

how they will position themselves in relation to the rules.

This is referred to as law activation strategies.

On the slide, you have the definition of the law activation strategies which are

ultimately the actions through which actors will select

the rule and the activation procedures

that appear to most enable

their objectives.

We are looking at an opportunistic perspective of

how to activate the rule.

The rule is no longer just a constraint placed on actors but

is also an opportunity for them to achieve their goals.

In that context,

actors will not necessarily aim to implement the rules.

Instead, they will might adopt other behaviours such as circumvention,

diversion, innovation of the rules.

The implementation of solutions will go even further.

The following diagram illustrates this reality. On one side there is an

institutional regime with many rules,

Rule 1, Rule 2, Rule 3… hypothetically, these rules are

potentially conflicting, and actors will finally select

the rule that will do the most to achieve their objectives and

an activation strategy as we described. It might be passivity,

realization, diversion, circumvention or innovation.

Lets try to enter into the details of these activation strategies and

give a definition and examples.

This is what happens: firstly, there is passiveness which

leads to a strategy where an actor will eventually decide to do nothing.

An actor may deliberately decide this or he might be forced to do nothing.

Maybe there is a lack of resources to activate a rule

or because he is unaware that the rule exists.

A typical example. An actor,

a target group for public policy, that does not ask for subsidies

because he does not know he has the option to apply for a grant.

Another example is when an authority will waive

a rule because there are not sufficient financial resources,

because there are not sufficient human resources.

A third example is the case where an organisation for the protection of

the environment will not renounce a decision it deems

contrary to a law on environmental protection, not because it

does not want to enforce the law

but because it has already allocated its resources to other cases.

So, this passivity is not necessarily decided deliberately.

It can also be imposed by external circumstances beyond

the control of the actors.

This is the first case.

The second is the realization.

This is the strategy through which an actor will attempt to apply

a rule or closely apply a rule.

Even in these cases

the application of the rule is not totally mechanical.

There is instead a certain margin to move, the possibility

to adjustment, to pull the rule in one direction or another.

The third strategy is diversion through which an actor

will seek to enable a rule not only to achieve the objectives for which

it was adopted, but to reach objectives of their own.

A typical example is the case of the grant,

when an actor will seek agricultural subsidy

for purposes other than agriculture, or the same with an energy subsidy.

So a grant is acquired for other

objectives such as for tourism

or the renovation of a building.

Objectives that have nothing to do with the objectives of public policy.

The fourth strategy is circumvention.

It is a strategy that we know well. A strategy through

which actors resist the application of a rule.

This is a very common strategy among target groups of

public policy who do not always regard

the behaviour changes that are expected of them favourably

and who are in denial about the reality of the situation.

There are two types of circumvention. There may be situations where

there is a bypass which remains within the rule

because the actor will be able to bypass the rule without his behaviour having consequences.

In these cases, there is a situation on the ground which goes against

the institutional regime. It will continue without consequences,

without anyone flagging this situation.

The other case of circumvention is when an actor

tries to get around the rule by applying it

in a way that goes against public policy. A traditional opposition

structure is the opposition between public policy

and property rights and an actor will try to oppose

the implementation of a public policy by invoking his right to property.

These cases of circumvention by confrontation will often end up

before the courts and then it is an

outside entity that will settle the rivalry.

The last case is more original. The case of innovation.

A strategy for innovation through which actors will seek to go

beyond what is provided by the institutional regime,

to establish rules which

respond more to local issues around the resource.

Typically, an association,

an organisation for the protection of the environment will seek to put in place

protection arrangements for water resources that are stricter

than those provided within public policies.

Now you have seen these five activation strategies. Passivity,

realization, diversion, circumvention and innovation.

Here is a question which will take you back to the video you saw in section 2.7:

Can you try to determine the activation strategies

deployed by the actors in this video?

In the context of the creation of artificial snow in Téléveysonnaz, it is clear enough.

Téléveysonnaz, an influential actor

tries to circumvent the institutional regime. It is a circumvention of the

rule because he knows that his behaviour will have no consequences.

Why will this behaviour have no consequences?

Because the other actors involved will deploy another strategy, a

a passive strategy. They will not act.

The town should refer the case to the canton but they

do nothing. The environmental protection organisations

denounce the case in the report,

but whilst they denounce the case to reporters, they will not go further.

They do not mobilize their right of appeal.

So these two actors remain passive,

and on the ground, there is a position that allows Téléveysonnaz

to create snow artificially before the date scheduled by the canton.

So in this specific case,

these activation strategies interact with each other.

They fit within the configuration of a particular actor.

Power relationships unfold between these actors

which finally refine, adapt and may change over time

and ultimately materialize within the arrangements between actors.

These arrangements between actors

are called Localized Regulation Arrangements, or LRA.

There are two ways to read this: a political reading

or a functional reading.

Politically, these arrangements, the LRA, are the materialisation of

the outcome of the actors’ game. They make these power relationship

between actors tangible. In the case of Téléveysonnaz, the

domination of Téléveysonnaz within the local power structure is made tangible.

Secondly, they anchor the strategy

that will be the strongest or who will emerge as winner of the game.

As such they are discriminatory.

They will privilege one player over another.

Don’t think that because the actors are working

together, they want to find a favourable solution for all.

These arrangements are discriminatory in some cases.

In the case of Veysonnaz, it can be clearly seen. Circumvention favours

the actor most central to the configuration which is Téléveysonnaz.

These arrangements, when an actor’s strategy materialises on the ground,

create a relationship with the institutional regime.

They work around it,

diverting it, or innovating in relation to it.

In a way, in a case of institutional innovation, they will improve

the scope and consistency of the regime. Or in a case of circumvention or diversion,

they will decrease it.

From a functionality perspective, localized regulation arrangements

encourage regulatory practices of the resource.

How will management of the resource

take place in a concrete case, a watershed, a ski station or

as seen in the video, a water outlet.

Rights and obligations are assigned. As such they will be

discriminating. They will adjust ways of operating

the resource. What is critical to the exploitation of the

water resource is not the date provided in the institutional regime

but rather the date at the start of October, when artificial snowmaking

occurs, and eventually they will resolve these occasional rivalries.

Let conclude by a simple overview of

these localized regulatory arrangements. I will not go into details.

We see that there are different forms.

They are not limited to the implementation acts of public policies

by state authorities.

Rather, alongside the implementation acts, there are agreements

negotiated between two actors. This may be written contracts,

this may be oral agreements or in the case

of Téléveysonnaz, a tacit demonstration of the arrangement.

The actors never state that

snow can be created before the date authorized by the canton,

but by their lack of action they endorse this reality on the ground.

Finally, it is the community arrangements that will united

different users around a resource.

These community arrangements represent a form of self-organization

about the resource.

They are common in Valais around irrigation systems.

You have on the slide a more detailed classification of the

various acts belonging to each of these categories.

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