Addressing adaptive law in the context of irrigation regulation in Kazakhstan

Addressing Adaptive Law in the Context of Irrigation Regulation in Kazakhstan

University of Eastern Finland Law School MDP in Environmental Policy and Law

31 October 2017 Writer: Aziya Taalaibekkyzy 277196 Supervisor: Niko Soininen

Abstract

UNIVERSITY OF EASTERN FINLAND Faculty

Social Sciences and Business Studies

Unit

Law School Author

Aziya Taalaibekkyzy Name of the Thesis

Addressing Adaptive Law in the Context of Irrigation Regulation in Kazakhstan

Major

Environmental and Climate Change Law

Description Master’s thesis

Date 31 October 2017

Pages 62

Abstract

This thesis focuses on Kazakhstan’s irrigation law, which is facing challenges in adapting to climate change impacts. Adaptive law is brought forward as a theoretical framework to assess the adaptive capacity and potential for further improvement in the face of climate change induced changes in available water quantity used for irrigation practices. This is an important issue in Kazakhstan, as agriculture is becoming an economic priority for the country for its development. Adaptive law criteria is developed to address how adaptive is irrigation law in Kazakhstan, and whether it is possible for it to be effective in an established legal system. My analysis finds Kazakhstan’s irrigation law to be maladaptive overall, but containing some elements of adaptive capacity that can be developed. Primary barriers for adaptivity include the centralized nature of governance, which does not enable multi-stakeholder decision-making and an iterative process to inform decision- makers. Moreover, the lack of enforcement and relevant safeguard standards in the law poses as a fundamental challenge for it even at this time, as enforcement is one of the most important features for adaptivity in regulation to work. Importantly, the lack of transparency and information available in managing of water resources undermines the use of adaptive law, as it would only worsen current conditions as a result of enabled opportunity for corruption. Nevertheless, there are elements of adaptive capacity already in place, which offer an opportunity in the future for it possible become more adaptive. These are overall substantive goals that focus on water basin approach, and procedural features, such as access to justice, permit systems and other elements. Brief recommendations focus on improving these elements and paving way for more dramatic changes in the governance and regulation of water resources in agricultural practices. Nevertheless, without the state’s willingness and capacity to achieve this, it is unlikely that adaptive law can be fully implemented.

Key words

Water law, irrigation, adaptive law, climate change, Kazakhstan

TABLE OF CONTENTS

ABSTRACT ... II LIST OF ABBREVIATIONS ... IV REFERENCES ... V

1 INTRODUCTION ... 1

1.1 Background and Rationale ... 1

1.2 Theoretical Framework ... 2

1.3 Methods... 5

2 ADAPTIVE LAW AS A WAY FORWARD ... 7

2.1 Definition and need for adaptive law ... 7

2.2 Critique of adaptive law ... 12

2.3 Developing criteria for measuring adaptive law ... 15

2.4 Criteria of assessment ... 23

3 REGULATION OF IRRIGATION IN KAZAKHSTAN ... 25

3.1 Contextualization of irrigation issues in Kazakhstan ... 25

3.2 Legislation on irrigation ... 30

3.2.1 Legal set up ... 30

3.2.2 Institutional set up ... 31

3.2.3 Water Code ... 33

3.2.4 Land Code ... 36

3.3 Discussion ... 38

4 ANALYSIS OF LEGAL ADAPTIVITY ... 42

4.1 Assessment against established adaptivity criteria ... 42

4.1.1 Goals ... 42

4.1.2 Structure ... 44

4.1.3 Methods... 47

4.1.4. Processes ... 49

4.2 Strengths and gaps ... 52

4.2.1 Identified strengths... 52

4.2.2 Capacity and limitations ... 54

5 CONCLUSIONS AND RECOMMENDATIONS ... 58

LIST OF ABBREVIATIONS

CWR Committee for Water Resources

EU European Union

GEF Global Environmental Facility

IWRM Integrated water resource management

MOA Ministry of Agriculture

NGO Non-governmental organization

SDGs Sustainable Development Goals

UN United Nations

UNDP United Nations Development Programme

UNECE United Nations Economic Commission for Europe

UNFCCC United Nations Framework Convention on Climate Change

USD United States Dollar

REFERENCES

LITERATURE

Adaptive law literature

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Arnold, Craig Anthony – Gunderson, Lance: Adaptive Law. In Allen, Craig R. and Garmestani, Ahjond S. Social-Ecological Resilience and Law. Colombia University Press 2014, p. 317-364.

Arnold, Craig Anthony – Gunderson, Lance: Adaptive Law and Resilience. 43 Environmental Law Reporter News and Analysis 2013.

Biber, Eric: Adaptive Management and the Future of Environmental Law. 4 Akron Law Review 2013, p. 933-962.

Clarvis, Margot Hill – Allan, Andrew – Hannah, David. M.: Water, resilience and the law: From general concepts and governance design principles to actionable mechanisms. 43 Environmental Policy and Law 2014, p. 98-110.

Committee on Endangered and Threatened Fishes in the Klamath River Basin, National Research Council: Endangered and Threatened Fishes in the Klamath River Basin: Causes of Decline and Strategies for Recovery. The National Academies Press 2004.

Craig, Robin Kundis: “Stationarity is Dead” - Long Live Transformation: Five Principles of Climate Change Adaptation Law. 34(1) Harvard Environmental Law Review 2010, p. 9-75.

Craig, Robin Kundis – Ruhl, J.B.: Designing Administrative Law for Adaptive Management. 67(1) Venderbilt Law Review 2014, p. 1-87.

Djalante, Riyanti – Holley, Cameron – Thomalla, Frank: Adaptive Governance and Managing Resilience to Natural Hazards. 2(4) Int. J. Disaster Risk Sci. 2011, p. 1-14.

Eckstein, Gabriel: Water Scarcity, Conflict, and Security in a Climate Change World:

Challenges and Opportunities for International Law and Policy. 27 (3) Wisconsin International Law Journal 2009, p. 409-461.

Folke, C. - Hahn, T. - Olsson, P. – Norberg. J.: Adaptive governance of social- ecological systems. 30 Annual Review of Environmental Resources 2005, p.

441–473.

Green, O.O. – Garmestani, A. S. – van Rijswick, H. F. M. W. – Keessen, A. M.: EU Water governance: Striking the Right Balance between Regulatory Flexibility and Enforcement. 18 (2) Ecology and Society 2013.

Gunningham, Neil – Holley, Cameron: Next-Generation Environmental Regulation:

Law, Regulation, and Governance. 12 Annual Review of Law and Social Science 2016, p. 273-293.

Holley, Cameron – Gunnigham, Neil – Shearing, C.: The New Environmental Governance. Abingdon UK: Earthsean 2012.

Keessen, A. M. and van Rijswick, H. F. M. W.: Adaptation to Climate Change in European Water Law and Policy. 8 (3) Utrecht Law Review 2012, p. 38-50.

Keessen, A. M. – Hamer, J. M. – van Rijswick, H. F. M. W. – Wiering, M.: The concept of resilience from a normative perspective: Examples from Dutch adaptation strategies. 18(2) Ecology and Society, 2013.

Lockwood, M. et al: Governance Principles for Natural Resource Management. 23 Society & Natural Resources 2010, 986-1001.

Pahl-Wostl, Claudia: Transitions towards adaptive management of water facing and global change. 21(1) Water Resources Management 2007, 49-62.

Ruhl, J.B.: Thinking of Environmental Law as a Complex Adaptive System: How to Clean up the Environment by Making a Mess of Environment Law. 34(4) Houston Law Review 1997, p. 933-1002.

Ruhl, J.B.: Climate Change Adaptation and the Structural Transformation of Environmental Law. 40 Environmental Law 2010, 363-431.

Ruhl, J.B.: General Design Principles for Resilience and Adaptive Capacity in Legal Systems: Application to Climate Change Adaptation Law. 89 North Carolina Law Review 2011, p. 1373-1401.

Ruhl, J. B.: Designing Administrative Law for Adaptive Management. 67 Vanderbilt Law Review 2014, p. 1-87.

Soininen – Platjouw: Resilience of Aquatic Environmental Law in the EU – An evaluation and comparison of the WFD, MSFD, and MSPD. In D. Langlet and R. Rayfuse Ecosystem Approach in Ocean Governance and Planning. Brill (forthcoming) 2018.

Termeer, Catrien – et al: The regional governance of climate adaptation: A framework for developing legitimate, effective, and resilience governance arrangements. 2 Climate Law 2011, p. 159-179.

Walters, C. T. – Holling, C. S.: Large-Scale Management Experiments and Learning by Doing. 71 (6) Ecology 1990, p. 2060-2068.

Willams, B. K. – Brown, E. D.: Technical challenges in the application of adaptive management. 195 Biological Conservation 2016, p. 255-263.

Williams, B. K.: Adaptive management of natural resources – framework and issues.

92 Journal of Environmental Management 2011, p. 1346-1353.

Literature on Kazakhstan

Al-Fati, I.: Policy Planning and Implementation. 12 (1, 2) Eastern and Central European Journal on Environmental Law 2008.

Beisembin K. R.: Rational use of water resources in Kazakhstan. 11 (31) Scientific Research Publications 2015.

Global Water Partnership: Central Asia and Caucasus. Regional Review. Water Supply and Sanitation in the Countries of Central Asia and Southern Caucasus 2009.

Fay, M. - et al: Adapting to Climate Change in Europe and Central Asia. World Bank Washington DC 2009.

Libert, Bo: Water management in Central Asia and the activities of UNECE. In Rahaman, M. M. and Varis, O. Central Asian Waters. TKK and Libert 2008.

McKinney, D. C.: Chapter 9 Cooperative Management of Transboundary Water Resources in Central Asia. In Burghart, D. and Sabonis-Helf, T. Water Security in Central Asia: Solving a Rubic’s Cube. Washington DC National Defence University 2003, p. 187-220.

Petrakov – Kenshimov: Parts 1 and 2 Practical guide on implementation of provisions from the Water Code 2012.

Riccardo, P. – Baris, O. – Janenova, S.: Objective or Perception-based? A debate on the ideal measure of corruption. 50(77) Cornell International Law Journal 2017, p. 77-106.

Stucki, V. - Sojamo, V.: Nouns and numbers of the water-energy-security nexus in Central Asia. 28(3) International Journal of Water Resources Development 2012, p. 399–418.

Wegerich, Kai et al: Water Security in Syr Darya Basin. 7(9) Water 2015, p. 4647- 4684.

Ziganshina, Dinara: International Water Law in Central Asia: Commitments, Compliance and Beyond. 20 Water Law 2009, p. 96-107.

OFFICIAL SOURCES National documents

Ministry of Environment and water resources of the Republic of Kazakhstan - United Nations Development Prgoramme (UNDP) in Kazakhstan - Global

Environmental Facility (GEF): III-VI National Communication to UN Framework Convention on Climate Change (UNFCCC). Astana 2013.

Blinov, Y.V.: Technial Report. Assessment of the impact of climate change on water resources of Kazakhstan. Ministry of Environment and water resources of the Republic of Kazakhstan, United Nations Development Prgoramme (UNDP) in Kazakhstan and Global Environmental Facility (GEF) 2012.

Ministry of Agriculture of the Republic of Kazakhstan: Governmental Program for Agro-Industrial Complex Development for 2017-2021 2017, under

Presidential Decree of the Republic of Kazakhstan from 14^th February 2017 No. 420.

Ministry of Environment and Water Resources of the Republic of Kazakhstan:

Governmental Program for water resources governance of the Republic of Kazakhstan for 2014-2040 2014, under Presidential Decree of the Republic of Kazakhstan from 19^th March 2010 No. 957.

United Nations documents

FAO: Irrigation in Central Asia in Figures. AQUASTAT Survey. Frenken, Karen, Food and Agriculture Organization of the United Nations 2012.

UNECE 2011, ECE/MP.WAT/35. Strengthening Water Management and Transboundary Water Cooperation in Central Asia: the Role of UNECE

Environmental Conventions.

UNDP 2010, Regional Project Document. Central Asian Multi-Country Programme on Climate Risk Management (CA-CRM).

INTERNET SOURCES

CA-Water Info: Database. Ziganshina, D. Comparative analysis of national water regulation of Central Asian countries in light of IWRM implementation.

Published in 2006. [http://www.cawater-

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The Official Internet Resource of the Ministry of Agriculture of the Republic of Kazakhstan: Territorial Subdivisions. Published in 2017.

[http://mgov.kz/ru/ministerstvo/territorial-ny-e-podrazdeleniya] (accessed October 17, 2017). a

The Official Internet Resource of the Ministry of Agriculture of the Republic of Kazakhstan: State support measures. Published in 2017.

[http://mgov.kz/ru/podderzhka-i-uslugi/mery-gosudarstvennoj-podderzhki/]

(accessed October 17, 2017). b

The Official Internet Resource of the Ministry of Agriculture of the Republic of Kazakhstan: Verification of private entrepreneurs. Published in 2017.

[http://mgov.kz/ru/proverka-sub-ektov-chastnogo-predpri/] (accessed October 17, 2017). c

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[https://strategy2050.kz/ru/multilanguage/] (accessed October 29, 2017).

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[https://www.transparency.org/country/KAZ] (accessed October 28, 2017).

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[https://www.transparency.org/research/cpi/cpi_2008/0] (accessed October 28, 2017).

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[http://www.xe.com/currencyconverter/convert/?Amount=0.20&From=KZT&

To=EUR] (accessed October 29, 2017).

1 INTRODUCTION

1.1 Background and Rationale

Agriculture remains Kazakhstan’s important economic sectors, as the government sees a lot of potential for economic growth and overall development in this area.¹ Consequently, the government has been steadily investing in agricultural industry, and has introduced a newly updated Program for Agro-Industrial Development for 2017- 2021. Grain is its primary production focus, whereas, cotton and rice production grown in the south are the most water usage intensive.²

However, current irrigation practices have heavily impacted land quality, reducing usable land for irrigation by almost 8% between 2011 and 2015.³ In 2015, 68% of available water has been directed towards agricultural use, and almost 79% of that water was used in irrigation of crops.⁴ With increasing impacts of climate change, there will be less water available for the agriculture and water users in Kazakhstan.⁵ Present practice of irrigation is considered extremely wasteful as a result of lack of systematization of institutional governance, problematic enforcement of the law, inefficient monitoring and transparency, limited finances; lack of incentives to use water resources efficiently; and lack of technical support towards degrading water facilities and efficient new irrigation technologies.⁶ Improved water management in agricultural sector has been identified as a vulnerability and in need for adaptation measures, particularly, not only with crop diversification and using drought resilient cultivars, but also with improvements in irrigation methods, such as the installment of drip irrigation systems.⁷ Kazakhstan’s National Communication III-VI to United Nations Framework Convention on Climate Change (UNFCCC) highlights heavy

1 Ministry of Agriculture of the Republic of Kazakhstan 2017, Section 2, p. 3-4.

2 Blinov, Y.V. 2012, p. 27.

3 Ministry of Agriculture of the Republic of Kazakhstan 2017, section 3.2, p. 9-10.

4 Ibid. section 3.7, p. 22-28.

5 Ministry of Environment and Water Resources of the Republic of Kazakhstan – UNDP Kazakhstan – GEF 2013, p. 12

6 Ministry of Agriculture of the Republic of Kazakhstan 2017, section 3.7, p. 22-28; Ministry of Environment and Water Resources of the Republic of Kazakhstan 2014, p.13-15, p. 26-31.

7 UNDP 2010, p. 10.

impact of climate change on the economy, particularly the agricultural sector, where irrigation practices and drinking water supply remain most vulnerable.⁸

All of these solutions must be reinforced by clear institutional arrangements supported by the robust legal frameworks. However, existing water law related to irrigation is rigid in terms of coordination issues and lack of transparency, especially considering public participation and access to basic information regarding compliance and monitoring reports. Moreover, the law does not establish clear responsibilities for implementing agencies, and the result is lack of coherency in management. This thesis assesses the adaptivity of Kazakhstan’s water regulation in the agricultural sector in general, and the regulation of irrigation management in specific. Water management and regulation in the agricultural sector is an important area of climate adaptation for Kazakhstan, as the country is extremely vulnerable to desertification and drought.⁹ Law needs to support climate adaptation in agriculture through adaptation to novel management practices and environmental conditions.

Main questions:

• How adaptive is the water regulation managing irrigation in Kazakhstan to the changing climate environment and climate change impacts?

• How the legislation should be improved to better address adaptation to climate change and droughts in the agricultural sector?

1.2 Theoretical Framework

Climate change brings about uncertainty in dealing with the regulation of agricultural irrigation, and there is a need for the legal framework to facilitate learning in order to adapt to the new conditions. This learning should be based on scientific evidence that informs the regulation, for instance predicting decrease in water flow or rainfalls and putting forward laws and standards that address sustainable and less wasteful use of water resources. Environmental law needs to improve its management capacity over its subject matter through learning in order to be adaptive.¹⁰

8 Ministry of Environment and water resources of the Republic of Kazakhstan – UNDP Kazakhstan – GEF 2013, p. 12.

9 Ibid. p. 12 and p. 191.

10 Ruhl 1997, p. 989.

Adaptive law is an example of new environmental governance, which is defined as a collaboration of agencies and organizations involved in common decision-making of an environmental matter for a common goal (such as private, public, nongovernmental, and other stakeholders). ¹¹ Sustainable uses and overall management of natural resources, in this case water use in agriculture, have been encouraging changes in governance and its design for the economical, environmental and social benefits. Such collaborative governance encourages interdependency and greater interaction among a wide range of actors. In turn this offers a greater variety of knowledge.¹² As a result, collaborative governance, particularly in the form of adaptive management in legal context, offers opportunities to address uncertainty, complexity and interdependency that stem from governance of natural resources in the face of climate variations. This leads to the need for decentralized governance to withstand such changes. In practice, normative guidance is much needed for the design of such systems.

Adaptive law theory offers an innovative solution to transform a rigid centralized legal system into a resilient and adaptive decentralized system of laws that allows an iterative process and a feedback system to improve impact and effectiveness of the laws by paying higher attention to and incorporating learning. When referring to adaptivity of the law I draw from adaptive management and resilience theories.

Adaptive management in a legal context is a “structured decisionmaking method, the core of which is a multistep, iterative process for adjusting management measures to changing circumstances or new information about the effectiveness of prior measures or the system being managed”.¹³ In turn, legal system that is resilient is consistent “in overall behavioral structure notwithstanding continuous change of external and internal conditions”. ¹⁴ Therefore, I am interested in a process and design configuration of a legal system responding to climate change impacts, such as droughts, that allows an extent of administrative and managerial flexibility. This would be based on continuous learning process encouraged by assessments and evaluations of subject matter to inform decision-making process. Examples of such

11 Holley et al. 2012, p. 4.

12 Lockwood et al 2010, p. 986-990.

13 Ruhl 2014, p. 1

14 Ruhl 2011, p. 1379.

processes are reviews addressing potential for environmental and legislative effectiveness, for changes in substance of the law (ex. in land use plans), monitoring, capacity building, consistent sectoral meetings and other mechanisms. Certain features could inform the law better, such as availability of data and information, and long-term planning instruments among others. This will be further elaborated in Chapter 2.

It’s important to consider the relevance of adaptive law to water management in agricultural sector in Kazakhstan. Apart from providing a quick legal response to the quickly changing environmental conditions in the irrigation system, in this case resource availability and quality, it’s important to consider whether adaptive law is actually necessary and useful. Craig and Ruhl have identified where adaptive law is not needed: where long-term stability in decisions is paramount, where implemented decisions cannot be easily changed, and where the agency’s final authority towards a decision is essential.¹⁵

As has been highlighted so far, the scope of this study is the analysis of Kazakhstan’s national water laws in the agricultural sector. I’m interested in how the law can be adaptive to increase adaptation capacity to climate change impacts, specifically looking at Kazakhstan’s water regulation and management in agricultural sector in relation to irrigation. The research objective is to assess whether the law is adaptive or not with specific set of adaptivity criteria. There are limitations to be considered when engaging with this study. First, whether irrigation law needs to be adaptive at all, and this will be more closely discussed later. Second, whether the need for transparency in adaptive law can be weakness for its applicability in this study. Risk for corruption is a very real problem in Kazakhstan and remains an important challenge.¹⁶ Such risk poses a question of necessity of adaptive law in Kazakhstan, as it requires a functioning and a transparent legal system to have an effect. Moreover, adaptive law has drawn criticism towards its practicability and efficiency, predominantly its limits to reduce uncertainty, its cost, and its ability to improve natural resource management.¹⁷ These arguments will be further addressed in Chapters 2 and 3. I am

15 Craig – Ruhl 2014, p. 13.

16 Transparency International 2015.

17 Biber 2013, p. 939-956.

interested in applying the methodology of adaptive law that was briefly outlined above and further explored in my research below, and general law design principles that deal with resilience, in order to emphasize the work done at national level to adapt to climate change.

1.3 Methods

The scope of this research is analysis of regulation relevant to irrigation practices, specifically addressing water uses derived from surface water. I am only addressing water quantity issues, relating to distribution, access and ongoing challenges with water related extreme events. Importantly, I am excluding analysis of international obligations and transboundary agreements on water management in Kazakhstan, despite significant impact on water management and irrigation practices. This is because they portray different challenges to climate change adaptation than national water laws. Primary law relevant to this assessment is Kazakhstan’s legislation on water is outlined in the Water Code No. 481-II from 1993, and the Land Code No.

442 from 2003. I will also look at relating legislation, such as the Presidential Decree on “Approval of governmental program on development of agro-industrial complex of the Republic of Kazakhstan for 2017-2021” 2017 No. 420. Particular attention is also given to Normative decrees of the Committee for Water Resources (CWR) under the Ministry of Agriculture (MOA). Ministry of Environment and Water Resources has been dismantled in 2013, and environmental issues have been distributed between different ministries. For our context, water management has been particularly taken over by MOA, which has formed a CWR, which is responsible for management of water in agricultural sector in Kazakhstan.

Among identified problems that feed into the maladaptive state of the regulation, corruption may present itself as one of the biggest barriers to successful adaptivity processes. Another potential issue is that the current legislation may not take into account long term, mid-term and short-term changes to the environment as a result of climate change, which significantly affects local areas. I intend to highlight the need to implement and incorporate resilience and adaptive elements in the criteria explained above into legislation. This is central because it emphasizes the importance of legislative quality, and in particular, the benefits of adaptive and resilient

legislation facing fast-paced climate change impacts. General recommendations from this analysis may provide insight for future developments.

Overall, this is an analysis of the potential effectiveness of the legal system to respond to water security risks evoked by climate change. I aim to use integrated criteria drawn from relevant research and literature on adaptive management and principles of resilience (some of which have been stated earlier) to assess irrigation laws in Kazakhstan. The overall focus is on the adaptive capacity of laws on water management and use in relation to the impacts of climate change.

My research starts with addressing literature on adaptive law and management, and principles of resilience. This is to primarily narrow down and determine criteria that would assess how adaptive and resilient water and environment regulation is to climate change impacts. Once the criteria or methodology of assessment is established (see Chapter 2), I will continue with interpret relevant national laws (see Chapter 3), and apply criteria to measure against the level of adaptivity of the law to climate change impacts in Chapter 4.

With the ongoing legal development in environmental sphere, my objective is to assess how adaptive and how resilient water law is in the agricultural sector to the effects of climate change. I wish to offer an insight into the level of legal resilience over environmental changes, highlight strength and/or weaknesses found in the current legislation, and offer recommendations.

In the following sections I will firstly address adaptive law, its advantages and limitations and potential practical applications and examples, from which I will present a criteria of assessment for our analysis. Secondly, I will identify and interpret primary laws and policy processes that oversee management and usage of water in agricultural sector in irrigation, and outline strengths, gaps and barriers of its design and effective management. Thirdly, I will use criteria of assessment to analyze whether the laws in place are adaptive, and whether adaptive law theory is applicable to water management in agriculture in Kazakhstan. Finally, my concluding thoughts will also provide general recommendations based on my evaluation.

2 ADAPTIVE LAW AS A WAY FORWARD

2.1 Definition and need for adaptive law

The aim of this chapter is to elaborate on adaptive law and establish a methodology for my analysis based on adaptive law theory. The output of this chapter is the proposed criteria of assessment for legislation related to water management in the agricultural sector in Kazakhstan.

With the rapid climate change related risk that has been most devastating in the past few years, legislation needs to keep up with continuing impacts. Legislative stationary and reliable attributes in managing the environment have been derived from “a decision-making process that depends heavily on a culture of comprehensive rational planning and prescriptive evaluations”.¹⁸ This approach to environmental law relies on fixed and comprehensive analytical tools prior to a legal decision, and on the assumption to comprehensively predict and assess impacts of this decision.¹⁹ However, this approach constraints legislative flexibility due to its strict pre- determined system of actions that does not take into account continuous large-scale changes in the environment, and limit administrative capacity to adjust their processes. As a result, this rigid nature could be less suited to manage fluctuations in environment, especially in the context of climate change. It presumes static and particular conditions in the environment, whereas in reality fluctuations in ecosystems, management of natural resources and the impacts of climate change are not easily managed by inflexible structures of law.²⁰

Adaptive law reflects the ability of regulation to maintain resilience by its ability and capacity to respond to changing environments while maintaining intended aims and functions, and continuously reflecting available scientific knowledge to inform the function of the management system.²¹ This form of adaptive management in natural resources use has been referred to as a pursuit of management and learning, where learning by doing and adjusting management to reflect the learning and new facts are

18 Craig – Ruhl 2014, p. 4.

19 Ibid.

20 Arnold – Gunderson 2013, p. 2-5.

21 Soininen – Platjouw 2018 (Brill, forthcoming), p. 3.

key ideas.²² The core idea of this decision-making processes is through structured

“multistep, iterative process for adjusting management measures to changing circumstances or new information about the effectiveness of prior measures or the system being managed”.²³ Adaptive law does not necessarily take away from the front-end regulation, but it aims to add to it by allowing iterative decision-making processes²⁴, which enhance management adjustments. Importantly, an adaptive system in a regulation can also include elements from direct regulation, economic and voluntary instruments, striking the balance between the rule of law and policy instruments. These can include economic and voluntary tools, which can encourage and enable innovation from versatile and polycentric system of management, and the trick here is to maintain coherence among these different aspects, tools and regulatory instruments.²⁵ Adaptive law requires information in order to function, as it is relying on different sources regarding environmental, economic and social feeds. It encourages involved agencies to make decisions freely and more frequently, following a structured protocol comprised of multiple steps.

Principles and primary traits for adaptive management have been identified as:

flexibility to deal with change; subsidiarity and connectivity in the form of openness to enable participation and multi-level governance and management; and iterativity where structures promote learning and adaptivity.²⁶ Specifically, principled flexibility can be described as flexibility that recognizes the distinction between uncontrollable climate change and anthropogenic climate change, and implements consistent principles for adaptation strategy. In other words it deals with uncontrollable climate change impacts to achieve general adaptation goals addressing principles first²⁷. Therefore, adaptivity would require substantive flexibility of the law for the managers to adjust their decisions, as well as procedural iteration and enabled learning for planning and management. Hence, both substantive and procedural elements are needed for adaptive law to function effectively.²⁸ Substantive mechanisms refer to

22 Walters – Holling 1990, p. 2060-2062; Williams – Brown 2016, p. 255; Williams 2011, p. 1346, Termeer el al 2011.

23 Craig – Ruhl 2014, p. 1.

24 Ibid. p. 7.

25 Soininen – Platjouw 2018 (Brill, forthcoming), p. 8; Arnold – Gunderson 2013, p. 13-18.

26 Clarvis – Allan – Hannah 2014, p. 99.

27 Craig 2010, p. 17, 64.

28 Soininen – Platjouw 2018 (Brill, forthcoming), p. 4,10.

clear goals that reflect available scientific knowledge, such as established standards for water use or guiding principles.²⁹ These goals require diverse consideration for environmental, social and economic features and aspects, and would either require narrow scope with a set of adjustable exemptions or a broad scope with strong environmental safeguard system in place.³⁰ Substantive elements of the law can be found in goals and aims of the legislation, which should also outline principles and justified substantive standards.

Procedural mechanisms refer to specific tools through an iterative process involving monitoring and feedback loop systems to enforce and implement these goals.³¹ These would not only ensure rights for information access, for participation and access justice, but also connectivity towards implementation of substantive goals through an established long term planning process.³² This iterative multi-step process towards adaptivity is outlined as: (1) definition of the problem, (2) determination of goals and objectives for management, (3) determination of the baseline, (4) development of conceptual models, (5) selection of future actions, (6) implementation and management actions, (7) monitoring, and (8) evaluation.³³ Such steps begin a continuous revision of the subject matter and systematically reducing uncertainty, which is precisely what is needed in managing water resources in the context of impacts resulting from climate change.

An iterative process could be a costly and time-consuming process, yet it offers a solution from the start, which arguably may be less costly than managing impacts that are much worse in the future. Adaptive management is increasingly emphasized to be valuable in cases of uncertainty that poses risks for the subject matter of the legislation. As a result, the triggered system of adaptive management will rely on an iterative process to ease management of natural resources and environmental issues by systematically reducing uncertainty aspects. This also enables information production and management decisions made concurrently³⁴, making it more feasible

29 Soininen – Platjouw 2018 (Brill, forthcoming), p. 4

30 Ibid. p. 7

31 Ibid. p. 4

32 Ibid. p. 7

33 Committee on Endangered and Threatened Fishes in the Klamath River Basin, National Research Council 2004, p. 332-335; Craig – Ruhl 2014, p. 7.

34 Biber 2013, p. 942.

to enable flexibility. The processes can be passive and active, where active adaptive management requires experimentation and duplications, while passive is reliant on desk analysis. Active adaptive management encourages the use of diverse strategies of management techniques.³⁵ For this to be practical and effective, procedural safeguards are needed in order to establish a loop system for easy decision-making and hold relevant managers accountable.³⁶ Examples can include review processes and standards. This can be done with high levels of monitoring of the environment in order to collect data and analyze results.

Adaptive management in law results in a resilient legal system that is consistent “in overall behavioral structure notwithstanding continuous change of external and internal conditions”³⁷, which can be interpreted both in the context of legal design, addressing structure and processes, and the stability of overall substantial context. In other words, a resilient system has the capacity to maintain to a certain extent the same function and structure, while it is undergoing change caused by external influences and disturbances. Applying resilience principles in the normative context may be challenging, but it is crucial. Ruhl has made sense of resilience theory that is first derived from natural and social sciences, and now interpreted in the context of a legal design.³⁸ A prominent feature of resilience highlighted by Ruhl is “the capacity to maintain high level of consistency of behavioral structure in the face of a dynamic environment of change”.³⁹ Principles and primary traits for adaptive management have been identified as: flexibility, subsidiarity, connectivity and iterativity,⁴⁰ hence it can concluded that adaptive management is expected to enhance resilience of a legal system to disturbances on various scales.

Adaptive management is a very difficult and different system to the current front-end type of legal management of issues. As a result, it is important to first address the current system’s potential and risks, and assess whether the benefits of using adaptive management in a certain legal context are bigger than costs. In order for adaptive management to be successful and efficient, there needs to be certain features and

35 Biber 2013, p. 946.

36 Soininen – Platjouw 2018 (Brill, forthcoming), p. 6; Keessen – van Rijswick 2012, p. 40-41, 46.

37 Ruhl 2011, p. 1379.

38 Ibid. p. 1373.

39 Ibid p. 1375.

40 Clarvis – Allan – Hannah 2014, p. 99-100.

conditions to the system of management. First condition is the balance between high uncertainty and controllability and the low risk of a management problem in a system.

Uncertainty refers to decision-maker’s level of knowledge, understanding of information with regards to the context of regulation responding to environmental changes. Controllability refers to the level of control the decision-makers has over regulatory environment. Risk refers to the possibility of backfiring and adverse consequences in intervention and experimentation of the problem in management.⁴¹ The aim is to reduce uncertainty using the iterative process mentioned above, and if uncertainty is low, then investment of time and resources is not necessary. If controllability is low, then the chances of management effectively affecting the system in an intended manner are low. If the risk is high, then this could lead to backfire of investment and resources.⁴² This is a very clear and simplified requirement to consider before weighing the costs and benefits of adaptive management in law. I will also assess these conditions in my case study.

Second condition is the decision-making environment. This refers to both practical and political suitability. For practical application of adaptive management we need:

clear goals for design management, monitoring and evaluation of alternative governance options; enabling environment for implementation of its core features, such as monitoring methods; available set of management and governance possibilities, which enable testing and comparison for better decision-making; and the matching time for both policy timeframes and adaptive management implementation.⁴³ For political environment, the agency needs to have continuous reliable resources for monitoring, experimentation and assessment of the environment and decisions. This is demonstrated through continuous financial and political support, as well as active stakeholder engagement.⁴⁴ Craig and Ruhl also highlight that adaptive management in law can also compliment front-end regulation in order to facilitate overall priorities of the policy.⁴⁵

41 Allen – Gunderson 2011, p. 1380-1383.

42 Craig - Ruhl 2014, p. 19-20.

43 Ibid. p. 23.

44 Ibid. p. 23.

45 Ibid. p. 25.

Adaptivity is a broad concept, and in order for me to successfully assess Kazakhstan’s water legislation applicable to agricultural use, specific criteria of assessment is needed based on the existing research. The following are some of the outlined criteria of assessment I have identified: iterativity, flexibility, connectivity, subsidiarity as primary principles for adaptive management⁴⁶, and maladaptive vs. adaptive law features comparative table⁴⁷. I’m intending to combine these criteria in Chapter 2.3, with the structured focus on Arnold and Gunderson’s table in order to determine a precise set of analytical tools to measure adaptivity in water regulation.

2.2 Critique of adaptive law

Criticism towards adaptive law has focused on the following themes: its ability to handle uncertainty, its cost to change management practices, and its ability to improve resource management. Biber has highlighted these problems; in addressing issues with uncertainty, Biber has identified limits of large-scale environmental concerns, problematic necessity of longer time to manage and apply adaptive management, limits towards necessary monitoring requirements, needed institutional continuity and patience, and problems of learning if dynamics of an environmental resource is too high and not useful.⁴⁸ All of these issues require full attention of responsible authority, which is difficult to achieve in practice, yet it can be worth the time and attention if deemed to benefit from adaptive management techniques. When referring to costs, direct costs of adaptive management refer to needed resources (time, money, attention and consideration of decision-makers) and lost opportunities of regular management by changing to adaptive management system.⁴⁹ But it’s important to consider that the intention of adaptive management in law is that benefits of these costs will outweigh the costs of not taking action. Costs to flexibility comprise of uncertainty for investors and developers and particularly local communities, creating social, economic and psychological costs. Moreover, the risk of abuse by authorities is higher as a result of flexibility and discretion allowed by adaptive management.

This is also in combination of reduced procedural requirements for decisions to be made, which can take away public participation and judicial review.⁵⁰ All of these

46 Clarvis – Allan – Hannah 2014.

47 Arnold - Gunderson 2014.

48 Biber 2013, p. 940-945.

49 Ibid. p. 945-946.

50 Ibid. p. 948-949.

problems with flexibility are valid risks, and it is important to be very careful when adjusting the management options towards adaptive management. Finally, Biber brings up the limits to the ability of adaptive management to improve management in face of environmental uncertainties at all. This is emphasized in his point that adaptive management cannot solve disputes over an issue that stem from disagreements in values or conflicts, and instead are suitable for issues where there is an understanding of shared and common priorities and goals.⁵¹ This an interesting insight in assessing the relevance of adaptive management in legal context as it emphasizes the importance to assess whether adaptive law can be useful in addressing a certain environmental concern. In response to these problems Biber has concluded with solutions in a form of relevant criteria for adaptive management to work. In order to not undermine its own objectives, processes and address an environmental uncertainty, adaptive law needs:

(1) a scale of time and place that enables multiple management and regulatory options and/or monitoring of these options

(2) sufficient time to provide information before making groundbreaking decisions

(3) institutional and legal structures that ensure high monitoring quality and are stable over a longer period of time

(4) evidence that ensures that benefits outweigh the cost of adaptive management (5) flexibility, which does not offer unacceptable levels of uncertainty for society, and does not undermine adaptive management because of political issues and pressures

(6) sufficient agreement on management and regulatory goals

(7) dynamism and uncertainty that justify adaptive management need⁵²

Moreover, it is important to consider how these identified conditions can improve the level of adaptiveness if facing challenges. Lawmakers need to assess how these conditions can improve adaptivity in law through a careful consideration to what is missing in their current set up and how additional systemic and conditional features in their legal processes can move away from current problems with rigidity. To answer challenges of adaptive management and law, Craig and Ruhl have highlighted that

51 Biber 2013, p. 956.

52 Ibid. p. 957.

adaptive management is not suitable to replace all law and cannot be applied in all contexts; specific circumstances where adaptive law is not applicable have been identified as: where long-term stability in decisions is paramount, where implemented decisions cannot be easily changed, and where the agency’s final authority towards a decision is essential.⁵³ Therefore, adaptive law should be implemented in instances where it benefits the subject matter of the law and enhances managerial effectiveness of the law. This is seemingly most matter-of-fact explanation, yet it is important to emphasize that adaptive law is not applicable to everything.

As a result, it’s important to ask whether the law should be adaptive for a certain circumstance. This is answered by assessing the way that the law operated over its subject matter, and analyzing the subject matter itself in order to define the level of uncertainty, the costs of installing adaptive management options, and whether this would benefit the case at all. More importantly, as emphasized earlier, it is very important to assess and confirm that adaptive management tools will benefit the practice of the law over management of natural resources. This assessment of the system itself and whether it can use adaptive management and the results are foreseen to be reliable, then it is most advisable to apply adaptive law. In cases where this assessment bears more costs than benefits, then it is concluded that adaptive law would not be useful and would spur further issues. As a result, changing the management of the system of laws is a groundbreaking and costly at first step, yet if it can prove its potential, then the risk is worth taking.

More criticism has been coming from applying adaptive law in practice. There are not many examples of adaptive law in practice, and based on available literature and assessment, most have not showed effectively the benefits of adaptive law due to its challenging nature. The complex institutional and value requirements for adaptive law can hardly inspire success if they are not firmly in place. Moreover, the complex nature of adaptive law and the challenge of taking into consideration multitude of relevant actors among other complexities and multimodalities make it difficult to implement adaptive law in practice on a large scale perfectly. For instance, in the European Union (EU) the Water Framework Directive, the Floods Directive and the

53 Craig and Ruhl 2014, p. 13.

Water Scarcity and Drought Strategy are considered to be resilient and adaptive towards the impacts of climate change.⁵⁴ Although there are weaknesses highlighted that emphasize the challenges of implementing adaptive law in practice: complexity of harmonizing legislation in the context of “institutional and procedural autonomy of the Member States”. Precisely this feature has led towards an insufficient regulation on sustainable use of water resources, and on freshwater resources distribution, which hinders the balance of water right and use between and within societal groups.⁵⁵ The resulting challenge identified in EU water law with regards to resilience and adaptivity is in managing differing interest groups in a complex system of governance of autonomic states. This suggests that even with a proper institutional set up, balancing empowered interest groups in a complex environment does not ensure a clear solution. Finding ways to enforce the law is as important as its design and institutional functioning. Nevertheless, EU water law offers a mixture of authorities and inclusive of administrative set up per river basin, as well as a strong disclosure and public participation clauses, which set up adaptive and resilient institutional settings of the water law. Not only these requirements enable monitoring, assessment and public involvement, but they also enforce a 6-year long planning cycle that enables a change in the law that meets environmental and societal needs.⁵⁶ Primary EU water law offers an example of a regulation that actively uses adaptive management and resilience theories, and therefore is considered to be an example of a functioning adaptive law system, with a few considerable challenges in its design and implementation. The EU case demonstrates the value of strong foundation for institutional organization, and it is important to consider whether adaptive law can function in a country with risks of corruption and brittle institutional setting. In Chapter 4 I will discuss how Kazakhstan would face these challenges and what could be done to improve an enabling environment for adaptive law.

2.3 Developing criteria for measuring adaptive law

Therefore, adaptive law is defined by a process and design configuration of a legal system responding to environmental changes that allow an extent of administrative flexibility. In other words, in order for the law to be adaptive, we need to look at the

54 Keessen and van Rijswick 2012, p. 49.

55 Ibid. p. 41.

56 Ibid. p. 41.

structure and processes of the law, and entirely the substance. For example, on managing water quantity in agricultural sector, factors such as the potential for monitoring, availability of data and information, potential to change land-use plans, long-term planning instruments, capacity building, consistent sectorial meetings and others, could ease legal capacity to adapt to environmental changes. Moreover, scholars have argued that the law has to be adaptive in order to be effective against climate change impacts.⁵⁷ But how do you measure the level of adaptivity, what does the answer tell us about the legislation?

Importantly, adaptivity of law is very difficult to measure and apply to context and, as a result, it is written in very broad definitions, which is one of its biggest flaws, as it does not provide for legislative certainty, and also its biggest strength, as it allows that flexibility aspect suitable in environmental governance. Ruhl has argued that in order for environmental law to be adaptive it needs to embrace and take the most out of structural aggregation of organizations, efficient and informative information flows, capacity for flexibility and nonlinearity, diversity in encouraged learning of the system, and self-criticism on its ability to adapt, and this would mean to rely less on details and propose guiding principles, which would inform the law on how to act and behave in response to a changing subject matter.⁵⁸ Ruhl argues for sustainable development, adaptive management and maintaining of biological diversity as the guiding principles for adaptive environmental law.⁵⁹ In order to measure adaptive management approach we need information.

In developing criteria of assessment of adaptivity for water regulation in agricultural sector in Kazakhstan, I will draw on literature and leading scholars of adaptive law.

The criteria of assessment will be a combination of proposed features of effective adaptive law models and propositions, which would be the first one applicable to a developing country. I will take into account that Kazakhstan is an economy in transition and may have other challenges than the experience of developed countries.

In choosing criteria my aim is to pick up on most valued and relevant features of adaptive law that would benefit the adaptivity of water law in agricultural sector.

57 Ruhl 2013, Craig 2014, Djalante and Holley 2011, Eckstein 2009, Folke 2005, Green 2013, Pahl- Wostl 2007.

58 Ruhl 1997, p. 991.

59 Ibid. p. 992-999.

Scholars have identified some of the guidelines for principles and features on how adaptivity criteria should be designed, such as: iterativity, flexibility, connectivity, subsidiarity⁶⁰, resilience evaluation criteria⁶¹ and maladaptive vs. adaptive law table⁶², which specifically assesses the law’s adaptivity based on four aspects of assessment in the laws: goals, structure, methods and processes. I am also referring to Soininen and Platjouw for additional guidance relating to overall formulation of the general direction of adaptivity criteria. ⁶³Importantly, these criteria highlight not only substantive and procedural elements of adaptive law, but also present implementation and compliance tools that ensure enforcement. Iterativity, flexibility, connectivity, subsidiarity criteria addresses both substantial and procedural requirements for adaptive law, and is relevant to both direct regulation and other policy instruments.

Resilience evaluation criteria and maladaptive vs. adaptive law table both engage direct regulation, and elaborates on both substantive and procedural features of the law. I will elaborate more on each set of criteria below.

Principles of iterativity, flexibility, connectivity, and subsidiarity are as follows:

iterativity relates to the generation and application of information and knowledge.

Flexibility addresses the capacity to change and adjust to the overall changing conditions as a result of climate change. Connectivity relates to networks between sectors for mobilization and collaboration. Subsidiarity is about implementation of at ground level.⁶⁴ All four become primary aspects of adaptive governance are reiterated in literature in some form or another.⁶⁵ Clarvis, Alan and Hannah have clearly outlined primary features of processes and mechanisms of adaptive governance in water resources management drawn from analysis of success stories and discussed experiences drawn from experiences all over the world below.

60 Clarvis– Allan – Hannah 2014, p. 98-110.

61 Keesan – van Rijswick 2012, p. 40-41.

62 Arnold – Gunderson 2014, p. 317-364.

63 Soininen – Platjouw 2018 (Brill, forthcoming).

64 Clarvis– Allan – Hannah 2014, p. 102.

65 Lockwood et al. 2010, p. 991-997; Craig 2010, p. 40-70.

Table 1. Governance mechanisms identified for adaptive and flexible governance systems

This table highlights the four principles of adaptive governance that balance flexibility of these approaches and provide actual mechanisms that demonstrate each principle. These governance mechanisms have also been weighted against their potential for dealing with uncertainty. Primary water governance mechanisms identified for adaptive management from the table above are procedural tools for adaptive law: water management review periods, varied rights to water use and access, established water use permit system, use of entitlements as share of resource, administrative requirements, water rights trading, coordination between sectoral management authorities, and consultation processes.⁶⁶ Substantive tools identified are primarily standards: locally appropriated standards (secondary legislation), qualitative, quantitative and monitoring standards.⁶⁷ These offer concrete examples that can be reflected into practice, and introduce a starting point to decision-makers to incorporate relevant instruments to make the laws more adaptive. In order to measure these criteria, I will assess assign each instrument against goals, structure, methods and processes of the law from Arnold and Gunderson’s maladaptive vs. adaptive law table.

66 Clarvis– Allan – Hannah 2014, p. 104, 106.

67 Ibid.

Moreover, as emphasized earlier, adaptivity of the law needs substantive flexibility and adaptive procedural safeguards to be effective. Thus, I will also look for duty to give reasons, access to justice, monitoring standards, continuous review periods, availability of multi-sourced data. Importantly, coherence among available instruments and tools is key to ensure intended functions of adaptive law.⁶⁸ In the context of water management in irrigation, not every proposed method is relevant, and an equivalent of some of them might need to be developed when assessing the case study in Kazakhstan. I will use these highlighted mechanisms that encompass primary features of adaptive management in law and are drawn from practical examples as some of the indicators of adaptivity in the assessment of water law in irrigation practices in Kazakhstan.

Keessen and van Rijwick have developed a resilience evaluation criteria to assess how resilient and adaptive is EU water law. The criteria establishes guiding elements and features to consider when assessing the law based on its resilience, and it showcases a simple logic in understanding how these are demonstrated in practice.

Figure 1: Resilience evaluation criteria⁶⁹

The figure above is based on adaptivity and resilience research and reflects principles outlined by Clarvis, Alan and Hannah on iterativity, flexibility, connectivity and subsidiarity. This criteria also adds an additional layer of balancing flexibility and legal certainty, which is can be demonstrated in goals, objectives and exemptions that provide clear justifications, expert opinions where necessary, disclosure and flexible standard setting in both substantive and procedural obligations.⁷⁰ It highlights access to justice and participation in decision-making processes by the public and relevant

68 Soininen – Platjouw 2018 (Brill, forthcoming), p. 9.

69 Keessan – van Rijswick 2012, p. 49.

70 Ibid. p. 44-46.

actors and stakeholders.⁷¹ Importantly, resilience evaluation criteria focuses on effectiveness of the legislation, where the legal framework enables achievements of is goals by providing conditions necessary such as enforcement mechanisms and implementation paths.⁷² All of these structural and purposeful features of an adaptive and resilient law must be assessed in a structured way in order to establish clarity in understanding how the legal framework can withstand climate change disturbances.

Arnold and Gunderson have developed maladaptive vs. adaptive features comparative table (see Table 1), which lays out features of maladaptive and adaptive law based on environmental change of conditions, and against goals, structure, methods and processes of the law. This approach offers a complex yet systematic outline on how to assess the system of law.

Table 2. Features of Maladaptive and Adaptive Law⁷³

71 Keessan – van Rijswick 2012 p. 42-44.

72 Ibid. p. 47-49.

73 Arnold - Gunderson 2014, p. 6.

First feature focuses on aims and goals of the law that would need to build resilient capacity for the environment and the society with equal regard. In other words, Arnold and Gunderson have identified this feature as a poly-resilient legal system, which emphasizes the need to focus on adaptive capacity of both institutions (federal and non-federal) and ecosystems. Moreover, a poly-resilient legal system also serves as a bridge between science, policy and people. In order for this to be effective, the law has to emphasize and focus on co-benefits for environment, society and law⁷⁴, which would serve as an incentive for involved stakeholders, communities and decision-makers to uphold environmental standards set up by adaptive management.

This is especially important for the adaptive law itself to recognize, facilitate and enforce co-benefit mentality into its governance. Therefore, goals are intended to offer a holistic vision and intent to manage subject matter, in our case water law in irrigation. In my research, I can draw this from the Water Code’s objectives in the general section, and preliminary documents of the law drafting. I will be looking at links and information on the focus of the law and any connection to co-benefit system or emphasis on poly-resilience.

Second feature refers to adaptive law structure, referring to polycentricism with a focus on multimodal and multiscalar responses. Polycentricism is identified by multiple sources of authority and decision-making, where emphasis is drawn from both governmental and non-governmental sources; direct regulation and economic and voluntary instruments play a large role here. Arnold and Gunderson argue that polycentricism is beneficial for resilience and adaptivity of the law because it allows experimentation and innovation, enables risk diversification, characterized by redundancy of resources, and enables better problem solutions based on diversified scales, scopes and speeds of problems.⁷⁵ This feature can also be referred to as a decentralized system of decision-making, which is one of the defined features of emergence of new environmental governance I addressed earlier. Multimodality refers to the use of multiple methods in addressing policy goal in an integrative manner, which draws from facilitation of multiple actors’ methods and tools to address a problem.⁷⁶ Multiscalar responses refer to the multiple scales of ecosystems and

74 Arnold - Gunderson 2014, p. 9-12.

75 Ibid. p. 13-14.

76 Ibid. p. 14-15.