The recognition of Muang Fai water resource management customary law for the sustainable development of Thailand

Abstract

Muang Fai water management customary law is the traditional community-based water management for agriculture in the northern part of Thailand. It has been used for over 700 years in the northern part of Thailand, southern part of China, Myanmar, PDR Lao and Vietnam. Nowadays, Muang Fai customary law is applied by at least 300,000 people in the norther part of Thailand, but it is not recognized by Thai law. This research investigates the present problems from the disconnect between Muang Fai water management customary law and national water management law in Thailand and makes recommendations on appropriate recognition of Muang Fai customary law to manage water sustainably. Because Muang Fai customary law has not been recognized in Thailand's national laws, this research investigates the failure of previous laws to recognize customary law as well. The crucial research questions addressed by this research are: 1) How does Muang Fai customary law operate as a system of water resource management in present day Thailand? 2) To what extent is Muang Fai customary law related to water resource management consistent with sustainable development principles? 3) What approaches have been taken in other countries to legally recognize customary law in natural resource management applicable to water resources? 4) Does the Thai legal system recognize Muang Fai customary law in water resource management? 5) What role does customary law play in the Thai legal system for natural resource management applicable to water? 6) What law reform approaches would improve the recognition of Muang Fai customary law for the sustainable development of water resources in Thailand. The rules, processes and institutions of Muang Fai customary law are examined to understand whether Muang Fai customary law continues to operate as a form of water resource management. The common pool resource theory pioneered by Elinor Ostrom, based on lessons learned from other examples of communal irrigation systems are applied to consider whether Mung Fai customary law can potentially provide for their sustainable development of their water resources. Then, the principles of sustainable development applicable to water resources are reviewed to provide the contemporary context of meaning, approaches and legal obligations of states to achieve sustainable integrated water resource management. The rules, processes and institutions of Muang Fai customary law are compared with the principles of sustainable development and particularly sustainable integrated water resource management. Furthermore, this research reviews the legal theories relevant to customary law recognition in national legal systems (legal pluralism, human rights principles). The main focus is on the lessons learned from other developing countries in customary law recognition for the governance of natural resources, especially Samoa and Vanuatu which are successful in recognition of customary law and customary institutions to manage fisheries sustainably. The applicability of these frameworks to the recognition of Muang Fai customary law and Muang Fai institutions for managing water sustainably in Thailand is considered. Then, the present water policies, water law and the previous recognition of Muang Fai customary law are critically reviewed to identify the opportunities, challenges and problems related to the recognition and integration of Muang Fai customary law and Muang Fai institutions in the water management processes of Thailand. Therefore, this research can provide the recommendations for future law reform taking into account Muang Fai customary law and Muang Fai institutions. This research will contribute to future research on similar topics which aim to create legal frameworks for customary law governance of natural resources that involve the recognition of locally specific laws and institutions through forms of legal pluralism and consistent with international human rights approaches and norms.

Date of Award	2018
Original language	English