Institutional Resource Regimes: The Case of Water Management in Switzerland

Abstract

The increased consumption of goods and services derived from natural resources has resulted in competing uses, increasing scarcity, and destruction of the resources stock. The use of such threatened resources can be institutionally in¯uenced and managed by means of Institutional Resource Regimes (IR). An IR is a combination of ownership, disposition and use rights, and of resource-speci®c protection and exploitation policies. This article presents the theoretical IR concept and analyses the historical development of IRs for the water resource in Switzerland. In particular, it identi®es those historical moments where the IRs actually changed, as well as the entire development trajectory of the IRs for the period 1870±2000.

Full text

Integrated Assessment 1389-5176/02/0301-078$16.00
2002, Vol. 3, No. 1, pp. 78±94 #Swets & Zeitlinger
Institutional Resource Regimes: The Case of
Water Management in Switzerland
FRE
ÂDE
ÂRIC VARONE
1
, EMMANUEL REYNARD
2
, INGRID KISSLING-NA
ÈF
3
AND CORINE MAUCH
4
1
Catholic University of Louvain, Department of Political and Social Sciences, Louvain-la-Neuve, Belgium,
2
University of Lausanne,
Institute of Geography, Lausanne, Switzerland,
3
Swiss Academy of Sciences, Bern, Switzerland, and
4
Swiss Graduate School of Public Administration, Chavannes-pre
Ás-Renens, Switzerland
ABSTRACT
The increased consumption of goods and services derived from natural resources has resulted in competing uses, increasing scarcity,
and destruction of the resources stock. The use of such threatened resources can be institutionally in¯uenced and managed by means
of Institutional Resource Regimes (IR). An IR is a combination of ownership, disposition and use rights, and of resource-speci®c
protection and exploitation policies. This article presents the theoretical IR concept and analyses the historical development of IRs
for the water resource in Switzerland. In particular, it identi®es those historical moments where the IRs actually changed, as well as
the entire development trajectory of the IRs for the period 1870±2000.
Keywords: natural resource, water management, institutional regime, property and use rights, policy design, Switzerland.
1. INTRODUCTION
Any number of examples can be provided to demonstrate the
ongoing degradation of natural resources. The use of such
threatened resources can be institutionally in¯uenced and
managed with the help of Institutional Resource Regimes
(IR). As we understand it, an IR is a combination of formal
property (ownership), disposition
1
and use rights, and the
prominent elements of resource-speci®c protection and
exploitation policies the design of which comprises speci®c
aims with respect to preservation and use, the intervention
instruments, institutional actor arrangements, etc. The cent-
ral postulate of this new theoretical approach assumes that
the two steering dimensions (``water rights system'' and
``policy design'') are complementary and must be taken into
consideration in order to achieve sustainable resource
management.
The starting point of our re¯ection is the question as to
how institutional rules affect individual behaviour and
collective resource management. The paper examines if
and how IRs adjust to changes in the structures of users as
well as to the increased use and scarcity of resources. By
analysing (as a ®rst empirical step) the historical develop-
ment of IRs for water in Switzerland we gain initial insights
into the triggers of IR emergence and change. To be able to
analyse the development of the different IRs, it is ®rst
necessary to de®ne what is meant by a natural resource
(Section 2) and the resource management de®cits identi®ed
by traditional economic and political-scienti®c approaches
(Section 3). On this basis, we identify the different consti-
tutive elements of an Institutional Resource Regime (IR) and
propose an initial typology of IRs and an ideal-typical
presentation of various development trajectories (Section 4).
These new theoretical concepts (basic elements, IR typology
and development trajectory) are then explored on the basis of
water resource (Section 5). In the ®nal chapter (Section 6),
we discuss the theoretical and practical usefulness of the
proposed IR approach.
2. RESOURCE DEFINITION AND RESOURCE
DEGRADATION
We de®ne natural resources as natural and man-made com-
ponents of nature that are important to people [2, 3]. Thus,
socio-economic and cultural factors play a key role in what
is and is not de®ned as a natural resource. The historical
point in time and spatial reference (local, global) are also
Address correspondence to: Fre
Âde
Âric Varone, Catholic University of Louvain, Dept. of Political and Social Sciences, Place Montesquieu 1, bte 7, B-1348
Louvain-la-Neuve, Belgium. Tel.: 32 10 47 42 74; Fax: 32 10 47 46 03; E-mail: varone@spri.ucl.ac.be
1
We consider the ``disposition rights'' as the possibility for the formal owner to freely ``dispose'' of (parts of) the resource, that means to sell it, to give it, to
rent it, etc. Disposition rights refer to the right to transfer speci®c use rights or to sell the resource itself. Most of water lawyers don't consider such disposition
rights and only distinguish the rights to own and the right to use (see for example [1]).

important here. A distinction is made between the resource
stock and its fruit (or yield). When we refer to a natural
resource, we intend both its stock and its yield [4].
The time taken for renewal provides information about
whether it is a renewable or non-renewable resource.
Depending on the existing resource stock, renewable
resources can renew themselves within decision-making
periods that are relevant to humans without targeted human
intervention [5].
Resources provide different goods and services (Fig. 1).
Resources give rise to either direct use (e.g., as input factors
in production processes or the direct consumption option),
indirect use (e.g., absorption sink for pollutants, ecosystem
services) or immaterial use (e.g., in the form of landscape,
amenity, aesthetic and cultural values) by humans [6, 7].
The resource situation can be characterised by the
number of bene®ciary groups and uses. It is very common
for different bene®ciary groups to compete for different uses
[7]. A distinction is made between the formal owner (owner-
ship rights), the appropriator (disposition rights) and the ®nal
consumer (use rights) of a resource. The disposal and use of
the resource stock, the sustained yield and the goods and
services based on the resource can be subject to different
regulations with respect to law on property and use.
From an institutional perspective, it is signi®cant that
numerous uses, property and use rights and bene®ciary groups
exist. All of the institutional regulations which in¯uence the
behaviour of the different bene®ciary groups and owners and
their rights can be de®ned as elements of IR. Whereas owners
have actual ownership of a piece of land and enjoy the rights
associated with this ownership, appropriators have clearly
restricted use rights relating to speci®c goods and services of a
resource (e.g., concessions for the production of hydropower
or for the withdrawal of groundwater). Final users are those
bene®ciaries who actually consume the acquired goods (e.g.,
consumers of electricity or drinking water).
3. CONVENTIONAL APPROACHES TO
RESOURCE MANAGEMENT
How can the degradation of natural resources and the
destruction of the environment be halted? Institutional
economics and political science have provided important
contributions on this issue and we draw, in particular, here on
the theories of property rights and public policy. Before
proposing an integrated approach, we would like to present
the remedies proposed by both traditional perspectives and
explicitly examine some of their shortcomings.
3.1. Property and Use Rights
Central economic concepts focus on the internalisation of
external effects and the design of institutional mechanisms
for coping with social dilemmas. We will speci®cally
examine property and use rights in detail.
3.1.1. Regulation of Property Rights
In contrast to the Pigouvian Tax solution [8] R. Coase [9]
assumes that property and use rights must be clearly regu-
lated to enable effective and ef®cient use and management of
resources. In his opinion, it is irrelevant who actually owns
these rights as the use which yields most pro®t will always
prevail.
Institutional economics considers property and use rights
as key steering factors. The internalisation of external effects
can, therefore, be brought about through the (re)de®nition of
property and use rights. Different types of property rights
Fig. 1. Water resource and goods and services derived from it.
INSTITUTIONAL WATER REGIMES IN SWITZERLAND 79

exist for natural resources. When these property rights have
similar characteristics, they are referred to as a property-
rights regime.
2
Their classi®cation is based on different
criteria [4, 11, 12] which include formal title to property,
organisation of exclusion, access control and decision-
making processes within the regime. A distinction is made in
the economic literature between four classical types of
regimes: no property, common property, state property and
private property.
In the case of private property, exclusive title to property
is in the hands of private individuals or corporations and this
must be respected by all others who are interested in the use
of this property. The enforcement of the rights is guaranteed
by the state. In the case of no property, we have a classical
case of resources, for which access is not formally regulated.
Common property and open access were thrown together for
a long time in the literature and this led to the misleading
conclusion that collective ownership in the sense of the
``Tragedy of the Commons'' [13] would lead to the destruc-
tion of the resource. It has now been established, however,
that in such cases of collective ownership, the resource in
question is controlled and managed by an identi®able group,
which establishes rules governing the use of the resource,
that avoid the degradation of the resource [4, 14±16].
The institutional economics literature also shows that
there is no theoretical or empirical justi®cation for the belief
that the private property system per se is better than the other
regulative systems.
3
Devlin and Grafton [10] state that there
is no ``best'' regulation and that a mix of regimes can be
found in most cases and environmental destruction can be
found in all regimes. However, it is possible to identify
conditions for the success of speci®c regulative systems.
4
3.1.2. Limits of the Economic Approach
Institutional economics makes an important contribution to
the analysis of resource management in that it draws atten-
tion to the function of property rights as steering factors and
examines the effect they have on the more or less sustainable
use of resources. In our opinion, however, this predomi-
nantly static institutional perspective also has its limitations
which are indicated below:
The consideration of water rights system alone is not
suf®cient for a comprehensive analysis of resource use and
management; it must also be analysed in the context of the
resource-speci®c public protection and use policies.
State regulation of the production and/or consumption of
certain goods and services provided by a natural resource is a
common occurrence in everyday political life (e.g., residual
water regulations for Swiss hydro-electric power plants). In
most cases, there are several public policies which regulate
the use of a resource and which can result in the degradation
of that resource due to their insuf®cient co-ordination (e.g.,
water protection and degradation of ground and surface
water due to the promotion of intensive agricultural prac-
tices). Thus, consideration of the water rights systems alone
is not suf®cient for the analysis of the institutional frame-
work. In fact, the in¯uence of all relevant public policies on a
speci®c commodity or on the entire resource, and their
interaction with the given property and use right arrange-
ment, should be given explicit consideration.
The emergence and change of institutional regimes should
be the focal issue: A dynamic perspective is required.
In our opinion, institutions should not merely be understood
as given frameworks, within which actions are carried out.
Like public protection or use policies, they too are the
product and integral components of the political process.
Most of the literature concentrates on the analysis of the
water rights systems which exist today. Lesser emphasis
will, therefore, be placed on the perspective dealing with
analysis of the process. In order to avoid further degradation
of resources, it is, however, important to know when and
under what conditions in the political process the institu-
tional regimes can be changed and how this can be brought
about and managed.
Speci®c public policies are becoming increasingly impor-
tant due to the fact that resource use requirements are
becoming more heterogeneous and self-organisation will
not suf®ce as a form of problem resolution.
Ostrom's earlier approach [4] focuses on common-pool
resources (CPR) and ± particularly in the earlier studies on
irrigation ± is based on the assumption of a homogeneous
demand for local commodities and services. In this instance,
it was possible to prevent the degradation of resources on the
basis of voluntary co-operation, i.e., without state interven-
tion. Although this can be viewed as a very ef®cient strategy
from an economic perspective, this kind of solution is
probably uncommon in highly developed societies char-
acterised by increasingly heterogeneous demands and an
expanding scope of effects ± factors which dictate against a
local and regional solution such as common property. Thus,
guidance of heterogeneous, growing and increasingly
competing use demands is required.
Self-organisation was sometimes facilitated by the fact that
the negotiations were held in the shadow of hierarchical
authority, i.e., rules were backed up by hierarchy.
2
Devlin and Grafton [10] have the following to say on this matter: ``Often
property rights that have a similar set of characteristics are called property-
rights regimes. The nature of these regimes is determined by the institutional
setting, technology, and the aspect of the environment over which they are
held.''
3
``It should never be assumed that private-property systems are superior to
common-property or state-property systems in either an economic, ecolo-
gical or social sense'' [10].
4
Devlin/Grafton [10] state: ``The key to success is to set up an incentive
structure for individuals that is compatible with both the characteristics of
the resource and institutions.'' Thus, there is no sense in introducing private
®shing rights in Africa when a collective system already exists.
80 FRE
ÂDE
ÂRIC VARONE ET AL.

In some cases, it is impossible to ®nd any formal traces of
state intervention, nevertheless self-organisation was only
possible in the shadow of hierarchy [17]. In this context, self-
organisation, i.e., the generation of rules, is intertwined with
public policy: the spectrum ranges from self-governing rules
backed up by the state to an ineffective common-property
regime combined with a successful public policy.
Actual use regimes are the result of interaction between
the ownership structure, state intervention and manage-
ment practice.
Empirical examples demonstrate that the actual use regime
is not only dictated by the selected ownership structure but
results from the combined interaction of the ownership
structure, state intervention and management practice. Thus,
constancy of structures is not a reliable indicator of the
actual management status [18]. Structures can be stable
while changes take place in the wider external environment,
resulting in a shift in the motivation of the resource users as
is the case, for example, in extensive areas of the Swiss
Alps.
The above considerations necessitate the development of
a wider concept of the IR which will: (1) take into account
the in¯uence of exploitation and protection policies, as well
as the emergence and transformation of the relevant policy
design; (2) incorporate the demands of heterogeneous user
groups; (3) consider the in¯uence of management practice as
a consequence of individual and group rationality and
changed external environment.
3.2. Protection and Exploitation Policies
Classical policy analysis has mainly focused on the
implementation of state measures (e.g., protection and use
policies) and on the evaluation of the resulting effects (e.g.,
on sustainability of natural resource). In contrast to these
empirical studies, little research has been done in the area
concerning the actual programme to be implemented (or
policy design). No coherent and empirically founded theory
has hitherto been developed to explain why a particular aim,
instrument or institutional arrangement was selected under a
speci®c policy [19, 20]. Hence, policy design has enriched
and transcended public policy analysis.
3.2.1. Design of Water Policies
Here, we understand policy design to be all formal legal
regulations, informal co-ordination clauses and institutional
structures of a public (protection or use) policy, which policy
makers (parliaments, governments) and social actors (com-
peting user groups) deem necessary to regulate the use of a
natural resource which is politically perceived as being
scarce. A policy design always includes substantial and
procedural, material and symbolic dimensions. Here, we
suggest that a distinction be made between the ®ve
constitutive elements de®ned below [21, 22].
1. Aims (or goals) include the social condition to be aimed
at in the area of the collective problem to be resolved
(e.g., sustainable use of resources). On the level of legis-
lation, such aims are often formulated in very abstract
terms (e.g., ``suf®cient'' biodiversity in the river).
2. Instruments comprise the measures to be implemented to
achieve the de®ned aims and the procedural rules for their
implementation. They de®ne the intensity of intervention
involved in a policy design (e.g., information campaign,
®nancial incentives, regulatory rules and bans) and the
procedural form to be taken by the exchange between the
relevant administrative authorities and resource user
groups (e.g., obligatory consultation of stakeholders,
legal right of appeal).
3. Target groups are social actors whose behaviour is
considered by the protection or use policy as relevant to
the resolution of the problem in question. State interven-
tion is intended to transform or stabilise this target-group
behaviour in order to achieve the desired aims.
4. Institutional arrangements de®ne the authorities and
of®ces responsible for the implementation of instruments.
In addition to this area of competence, they are also
charged with decisions concerning the public resources
(e.g., money, infrastructure, personnel, time, information,
consensus) at the disposal of the identi®ed implementing
actors.
5. In order to realise the desired effects, each policy design
is based on a policy rationale, which comprises hypothe-
ses on the effect structure behind the collective problem
and the possible forms of state action. The causal
hypothesis responds to the question as to who or what is
to blame or is objectively responsible for the unaccep-
table use of the resource. This gives rise to the political
de®nition of the target groups. The intervention hypoth-
esis responds to the question as to how the behaviour of
these target groups can be in¯uenced in such a way as to
achieve the de®ned aims. This gives rise to the political
de®nition of the policy instruments.
Policy analysis shows that such policy designs are often
incomplete or incoherent, that they are only partly imple-
mented and/or that the effects achieved only partly corres-
pond to the de®ned aims. Thus, it is imperative to examine
the extent to which the concrete use and management of a
natural resource depends on the internal coherence and
degree of implementation of such policy designs.
3.2.2. Limits of the Policy Approach
Like the institutional economics approach to resource use
and management, policy analysis has also some major
shortcomings which are described below:
By focusing mainly on policy implementation the tradi-
tional policy analysis has an inherent ``conservatism
bias.'' There is a need to question the internal cohe-
rence of policy design in order to anticipate foreseeable
INSTITUTIONAL WATER REGIMES IN SWITZERLAND 81

policy failures and to propose innovative and effective
IR.
As policy analysis mainly focuses on the implementation of
existing policies, it is (at least potentially) somewhat
conservative. It may try to improve the implementation of
existing policies marginally and incrementally with its
empirical-analytical conclusions and prescriptive recommen-
dations (e.g., adaptation of an instrument, extension of the
implementation arrangement) but it does not really question
the policy design and action logic (policy rationale) behind
them. The ex ante analysis of the coherence of certain policy
designs demonstrates, however, that in many cases, imple-
mentation de®cits and undesired policy effects are or could be
completely predictable from the outset. To take this into
account, policy analysis should also systematically examine
the causal and intervention hypotheses of a public policy.
``Resource-protection'' policies which are normally inves-
tigated by the traditional policy analysis concern only one
aspect of integrated resource management and sustain-
ability.
Environmental policies are generally conceived to protect a
natural resource (or one or more parts thereof). The concept
of sustainability is ultimately concerned with taking into
account, combining and adjusting both protection and use
measures. A comprehensive analysis of the public policies,
which together in¯uence the sustainability of a natural re-
source, should, therefore, also include infrastructure policies
in its perspective. At present, the simultaneous and integrat-
ed analysis of protection and exploitation policies is either
non-existent or extremely exceptional.
In many cases, sectoral policies are ``one use'' policies.
Such a fragmented perspective is an insuf®cient basis for
comprehensive and integrated resource management.
Environmental policies usually ®ght the negative effects
which arise from a particular use of a resource, of one good
or service deriving from a resource (e.g., pollution of water
by nitrates). This sectoral approach proves incompatible
with the aim of global and integrated resource management
(i.e., all goods and services should be considered simulta-
neously). In addition, the accumulation of several sectoral
policies requires extensive co-ordination (intra-policy and
inter-policy, vertical and horizontal, etc.) as different secto-
ral policies are implemented by different specialised admin-
istrative authorities and agencies. The transaction costs
resulting from this ``piling up'' of of®cial policies increase
with time and can become unsustainable. Similarly, the tar-
get groups of these different and numerous public policies
sometimes receive incoherent and even contradictory messa-
ges and action incentives from the state. Hence, it makes
sense from the perspective of state actors and social groups
to co-ordinate the policies at the level of the policy design
and IR.
Traditional policy analysis makes no explicit link between
public policies and property and use rights. But ± as
already stated before ± the de®nition of property and use
rights is frequently put in concrete form through public
policies.
De facto (if not de jure), public policies distribute speci®c
(even exclusive) use rights to the actors, whose behaviour is
to be in¯uenced by the state intervention. Even if the formal
property and use rights are no longer being questioned, their
material or substantive content is rendered concrete and
restricted by public policies. Thus, each policy change
involves a redistribution of these use rights. This redistribu-
tion explains why it is dif®cult to alter the status quo and
identify new winners and losers. Moreover, individual public
policies do not take into account the global quota of a
resource which is also supposed to satisfy needs which have
not yet been discovered or articulated (i.e., goods and
services that can be derived from the resource). Hence, an
explicit analysis of the relationships between all actors (i.e.,
also the newcomers), the existing property and use rights that
are being rede®ned by the public policies and the global
control and management of the resource is essential.
The above-mentioned limitations suggest the develop-
ment of an IR concept which will: (1) adopt a resource
perspective that is much broader than the sectoral perspec-
tive of environmental protection policies that is focused on
one or a few goods and services; (2) take into account the
logical coherence and practical feasibility of the different
policy rationales of exploitation and protection policies; (3)
explicitly consider the indirectly or secondary (re)de®nition
of use rights through public policies.
4. INSTITUTIONAL RESOURCE REGIMES (IR):
A NEW APPROACH
As suggested previously, the management of resources can
be controlled through resource-speci®c policies and order-
policy interventions: the institutional framework in a broader
sense is de®ned in terms of the ownership, disposition and
use rights to a resource and the restrictive provisions of
special policies for the exploitation and protection of this
resource. The central postulate of our new approach assumes
that the two steering dimensions are complementary and
must be considered both in order to achieve a sustainable
resource management. Furthermore, a comprehensive view
of the regulations affecting different goods and services is
required. We here refer to Institutional Resource Regimes
(IR) for the use of natural resources which promote
sustainability.
Before presenting the analytical concept (4.1) and the IR
typology and development trajectories (4.2 and 4.3), we
brie¯y would like to de®ne what shall be understood by the
term institution. Institutions usually are de®ned as a set of
rules which structure the relationship between individuals by
82 FRE
ÂDE
ÂRIC VARONE ET AL.

determining the range of possible reactions to certain
situations and designing the relationships between indivi-
duals in such a way that the ± predictable ± outcome is
equilibrium. Scott [23] states in this context that ``Institu-
tions consist of cognitive, normative, regulative structures
and activities that provide stability and meaning to social
behaviour.'' Thus, as a concept ``institution'' is highly equi-
vocal: institutions can refer to formal rules, behavioural
standards, economic and political structures or framework
conditions (e.g., [24, 25]). For our purposes, the focus is
mainly on the formal rules, i.e., we are interested in their
de®nition, monitoring, implementation, change and evalua-
tion.
Institutions are both the result of former actions and the
framework within which their new activities take place.
Institutions and, hence, IRs can change over time and
become increasingly differentiated. Thus, the de®nition and
classi®cation of IRs shall be carried out from a historical
perspective. This requires a combined analysis of the water
rights system (legal distribution of ownership, disposition
and use rights to the resource) and political factors which are
contained in the resource-speci®c public policies (e.g.,
protection of minimal water ¯ows, promotion of hydro-
power). We work on the assumption that ± as stated by
Scharpf [26] ± the IR embodies a minimum of formal rules in
terms of institutional guidance.
4.1. Analytical Concept
Resource policy interventions are combined and formed
along with (existing or consciously modi®ed) ownership,
disposition and use rights in the process of the development
of the differentiation of subsystems and public policies. We
de®ne an IR as an institutional framework which combines
the prominent programme elements of a resource-speci®c
protection and/or exploitation policy ( policy design) with
a speci®c arrangement of the formal ownership, disposition
and use rights for the goods and services provided by a
natural resource ( water rights system). While in the case
of the analysis of the ownership, disposition and use rights it
is possible to avail of the classical research on property-
rights regimes undertaken in institutional economics, the
political factors will be examined with the help of policy
(design) analysis. Theoretical and empirical studies shall
therefore concentrate on the identi®cation and changes in the
central elements of the policy design and of the property and
use rights. These constitutive elements are listed in Table 1.
From an empirical point of view, the analysis of the
transformation and effects of an IR would imply the
identi®cation of the above-mentioned constitutional ele-
ments of the IR. The diachronic analysis will allow for
making a statement on the extent of the IR and will reveal
the goods and services for which the use of the resource
was regulated by applying speci®c public policies, or by
means of the introduction of ownership, disposition and
use rights over time. The coherence of the IR can be
evaluated by combining the policy design and property and
use rights.
In the empirical analysis, a distinction should be drawn
between the formal legal nature of state interventions and
title to property and the actual incentives set for individual
behaviour in relation to the goods and services provided by
the resource. Hence, use rights are possibly rendered
concrete or new property rights recognised through public
policy interventions. Therefore, as a component of public
policies, instruments operating on use rights can affect the
water rights system. New use rights, such as the access right,
may have been introduced, however the formal change may
have been the result of the redesigning of the protection and
use policy.
4.2. Typology of Institutional Resource Regimes
Different stages of the development of an IR development
can be identi®ed from a theoretical point of view.
We speak of a ``no IR situation,'' in cases where neither
ownership, disposition and use rights, nor public policies
exist. Chances are in this instance that a resource or its
services and goods have not yet been discovered. This was
the case for biodiversity until recently.
If the use rights are formulated either directly in detailed
water rights systems (e.g., new de®nition and application of
ownership, disposition and use rights) and/or at least indi-
rectly through an initial policy design (e.g., general police
clause for protection of use rights or bans and licence
reservations), this can be referred to as a ``simple IR situa-
tion.'' We suspect that this kind of simple IR emerges when
the central actors observe rivalry and scarcity in connection
with the predominantly homogenous use of one or several
goods or services provided by a given resource and this
becomes a collective problem because of the risk of local,
regional or global overuse.
In a ``complex IR situation,'' we can already observe
differentiation on the basis of the speci®c uses of the re-
source (goods and services provided by the resource) and the
combining of the (clari®ed, rede®ned) ownership, disposi-
tion and use rights with more detailed policy design in terms
Table 1. The central elements of an Institutional Resource Regime (IR).
Institutional Resource Regime (IR)
Policy design (PD) Water rights system (RS)
1. Political aims (according to
problem de®nition)
1. Formal possession of
property title (ownership)
2. Instruments 2. Rights of disposition
3. Target groups 3. Speci®c use rights
4. Institutional (implementation)
arrangement
5. Causal and intervention hypothesis
(policy rationale)
INSTITUTIONAL WATER REGIMES IN SWITZERLAND 83

of substantive content of the corresponding protection and
use policies. The differentiation of the aims of natural
resource protection and use policy designs will probably
move from negative statements such as ``no environmental
nuisances'' ( general police clause) towards more quanti-
tative, positively formulated prescriptions on the desired
quality of the resource (e.g., water quality standards) and, in
the next step, in limiting the consumption of speci®c goods
and services in time and space in terms of general
quantitative consumption quotas (e.g., minimum water
¯ows). The heterogeneous demands and the sum of the
diverse (private-)use rights could lead to a crisis in and
possibly even the collapse of the complex IR. Examples of
such competing and excessive uses can be found in the area
of land (e.g., agriculture, construction zones, roads and
railways, etc.), water (e.g., ®shing, energy, agriculture,
drinking water, etc.) and forest (e.g., biodiversity, recreation,
timber, etc.).
One key theoretical and empirical question is whether it is
possible to establish an IR which can take account of these
varied heterogeneous demands and regulate the totality of
threatened uses in such a way that it is possible to maintain
the capacity of the whole resource in question for the
production of all the goods and services provided by the
resource. We refer here to an ``integrated IR situation'' with
use of natural resources which promote sustainability.
Integrated IRs make it possible to guarantee the transparent
satisfaction of the heterogeneous use requirements and to
conserve the resource stock.
We suggest a way of integrating the ``property rights'' and
``public policy'' paths from the beginning of the analysis.
The ®rst dimension for ``measuring'' this integrative aspect
of IR is dictated by the range of goods and services (or
scope) affected by the water rights system and the policy
design aspects. Are all the goods and services derived from
the resource affected (to the same degree) by the measures
relating to this natural resource? The actor network is
considered a second important dimension for quantifying
the level of integration within IR over a certain period. Here,
the judgement with respect to its coherence must be based on
the question of coherence between the policy design target
groups and the owners, appropriators, and ®nals consumers
of speci®c goods or services derived from the natural
resource. Are all owners, appropriators or end-users of a
resource de®ned as target groups in the policy design? Are
all users (or appropriators or owners) of a resource affected
by the IR (or its changing aspects)? With respect to
implementing actors, the question arises as to whether or
not administrative structures for implementation exist and to
what extent they are equipped with administrative resources.
All in all, the question of co-ordination between the different
actors appears to be crucial. This means that in order to have
a minimum level of coherence, public policies must
intervene (via the target groups) in at least one form of
property relationship between humans and a resource (i.e.,
owner, disposition or use rights). This valuation must be
applied to each time period. This leads us to the following
matrix structure for IR (see Table 2).
4.3. Development Trajectories of Institutional
Resource Regimes
In our opinion, the historical emergence of an IR and the
detection of different stages, as well as their resulting effects
on the natural resource, are important topics for future
research on resource sustainability. By referring to the
concept of a trajectory, patterns of timing and sequence are
emphasised and the development path of IRs studied. With
this procedure we implicitly assume that the capacity of
actors to design optimum institutions (as behaviour incen-
tives) is limited and historically conditioned. Path depen-
dence is by the way used to support the key claim, ``that
particular courses of action, once introduced, are often
virtually dif®cult or impossible to reverse even if their
consequences prove to be disastrous'' [27].
From a methodological perspective, the analytical con-
cept of the IR can be de®ned as both a dependent variable
(which factors in¯uence the emergence and change of IRs?)
and an independent variable (what are the effects of a
particular IR on the users and sustainability of a natural
resource?). Hence, two types of hypothesis are required to
explain the historical development of IRs and natural
resources (as, according to our main postulate, both elements
are related). Without making any claim of being compre-
hensive, the following exemplary hypotheses can be
formulated on the genesis and transformation of IRs as well
as on the effects of IRs:
1. Existing property rights are hardly ever basically
questioned when an IR is changed but rede®ned on an
incremental and resource-speci®c basis through changes
in the policy design.
2. If the intervening protection or use policy is too weak and
incapable of producing enough social commodities, the
change in IR directly affects the water rights system.
3. The more integrated an IR is, the more sustainable the use
of the resource will be, given heterogeneous demand.
To summarise this heuristics, research on the historical
IR change aims to examine when, whether, under what
Table 2. Typology of Institutional Resource Regime.
Institutional Resource
Regime (IR)
Coherence of the actors within
the policy network (PD) and
the water rights system (RS)
High Low
Range of regulated goods High Integrated IR Complex IR
and services (derived
from the resource)
Low Simple IR No regime
84 FRE
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ÂRIC VARONE ET AL.

conditions and in what form IRs are established which can
regulate all of the use demands and thus react to the growing
scarcity of individual goods and services or the destruction
of entire stocks of a given resource.
As we previously de®ned the different types of IR, it is
now also possible to identify ideal-typical historical
development trajectories. Figure 2 provides an overview of
such ideal-typical development paths (NB, the degree of
differentiation of policy design and property rights is
measured by the range of good and services regulated).
A Policy-driven trajectory means that public policies are
conceived and implemented in the absence of explicit and
clear property rights and their legal de®nition. It should,
however, be noted that the various policy designs can de®ne
very well determined use rights (i.e., to a few goods and
services provided by the resource), even if only indirectly.
However, actual property rights are only clearly formulated
and legally distributed among the target groups of the
relevant public policies at a later stage.
In the case of a parallel trajectory, there is parallel
development of the water rights system and the policy
design. This means that certain property and use rights are
formally de®ned and distributed while simultaneously
setting clear limits with respect to the contents of these
rights through different policy designs. The opposite
situation is also plausible: if different policy designs are
introduced, this provides an opportunity to clearly de®ne and
distribute the formal ownership, disposition and use rights
which are touched on by the public policies. Hence, it is not
necessary to know whether the ownership, disposition and
use rights or the policy design are the driving force. It is
important, however, that both elements are co-ordinated in
terms of both form and content (like identical or Siamese
twins).
AProperty-rights-driven trajectory means that property
and use rights are de®ned and distributed in the absence of
the conception and implementation of policy designs.
Hence, ownership of a resource or the goods and services
it produces are almost absolute and unlimited. With this
scenario, policy designs which limit the content of use and
property rights or distribute them among various owners,
appropriators and ®nal consumers are not developed until a
later stage.
It is important to note that exceptions to the three above-
described development trajectories may occur. Some non-
linear trajectory of IRs deviate from the assumed paralle-
lism or clear priority in the historical evolution of the
degrees of differentiation between water rights systems and
policy designs or from the assumed priority of one element
over the other one. Thus, a highly differentiated policy
design could become radically simpli®ed if legislation intro-
duces a more sophisticated property and use rights arrange-
ment which is considered as suf®ciently guaranteeing a more
sustainable use of threatened naturally produced goods and
services (e.g., privatisation of previously state-owned resour-
ces or the opposite movement towards nationalisation). The
same appears even more likely in the case of changing
degrees of policy design differentiation in the absence of a
corresponding (explicit) change of the water rights system,
such as can be observed in the case of many clean air
protection policies in some European countries over the past
decade (e.g., increasingly differentiated policy designs
including more and more polluting substances and ambient
air quality standards without visible changes to the attribu-
tion of the actual permits among different emitter groups).
5. INITIAL EMPIRICAL EVIDENCE: THE CASE OF
WATER MANAGEMENT IN SWITZERLAND
As a ®rst attempt to apply the IR concept developed above,
the following sections present the historical development of
IRs for water management in Switzerland (see [28±30], for a
comprehensive presentation of this empirical study).
5.1. Institutional Resource Regimes in Switzerland
The examples from Switzerland show a vast spectrum in
terms of IR differentiation for different natural resources like
water, soil, forest, air and landscape [31, 32]. Analysis of the
legislation revealed that in Switzerland, formal ownership,
disposition and use rights are often based on federal civil or
(additional) cantonal civil or public law, whilst the public
protection and use policies can for the most part be formally
associated with what is known as the federal or cantonal
public law. The Swiss water rights systems have their legal
basis inter alia in the Swiss Federal Constitution (property
guarantee: Article 26) and the Swiss Civil Code (general
de®nition of property: Article 641). Moreover, property
restrictions are also increasingly regulated in the special
federal public legislation and the corresponding cantonal
introduction acts (e.g., environmental protection, construc-
tion and regional development legislation, general and
special police restrictions of ownership). Finally, there are
formal and informal rules and regulations in the sense of
common-property, whose signi®cance should not be under-
estimated and which render the task of classi®cation in terms
of different property types extremely dif®cult.
Fig. 2. Development trajectories of Institutional Resource Regimes.
INSTITUTIONAL WATER REGIMES IN SWITZERLAND 85

The following description of IR for water is provided as
example of particular combinations of regulative systems
and speci®c protection and use policy designs. Figure 3
shows a graphical presentation of its application to the
resources soil, water, forest, air and landscape in Switzerland
at the end of the 20th century [33]. Air and landscape
regimes follow a policy-driven trajectory and the trajectory
of the soil regime can be considered as a property-rights-
driven one. Forest and water regimes follow parallel
trajectories.
We now discuss more in details the existing IR for the
water resource in Switzerland. We shall discuss ®rst the
water management conditions related to the Swiss political
system, then the goods and services provided by the
resource, the development of the property regulation, the
policy design development and ®nally the regime evolution.
5.2. Political System and Water Management in
Switzerland
The Swiss political system is characterised by direct
democracy and by its distinctive federalist structure,
involving the federal, cantonal and communal levels. Due
to the nature of the Confederation's historical origins, state
affairs mostly remained in the hands of the cantons, all of
which have their own constitution and political institutions
comprising a legislature (generally parliament), government,
administration and courts [34]. Over the past century, tasks
have been increasingly assigned to the Confederation as a
result of the revision of certain articles of the Federal
Constitution. Despite this, the Swiss cantons still exercise a
great deal of in¯uence and power in the political arena as a
result of the ``implementation federalism,'' whereby the
implementation of most of the public policies regulated by
the Confederation is assigned to the cantons, often with
considerable room for manoeuvre. Thus, the administrative
structures in the area of water policy re¯ect the federalist
structures of the Swiss political system. The main actors in
Swiss water policy are the Confederation, the cantons and
the municipalities or local authorities.
Sovereignty over (public) waters is assigned to the
cantons. Hence, they are responsible for the allocation of
permits, licences, and concessions relating to different water
uses such as navigation, ®shing and the production of
hydroelectric power. While their activities must respect the
framework of the federal legislation, they still have
considerable room for manoeuvre. This gives rise to far
greater diversity in the administrative structures at cantonal
level as compared with the federal administration. The
municipalities' responsibilities in the area of water policy
mainly involve the operation of sewage systems and
wastewater treatment plants as well as the production and
distribution of drinking water. As yet, there have been no
signi®cant privatisation projects in the areas of water supply
and wastewater treatment although the topic is more and
more under discussion.
Decision-making processes with respect to water issues
take place at state level, to which speci®c tasks are assigned
within the framework of the direct democratic system. A
very large number of legislative acts in most policy ®elds,
therefore, are subject to (mandatory or optional) referendum
and must be rati®ed by a majority of the voting population
and the cantons. This also applies to water policy issues. As a
result of these uniquely Swiss political structures, in general,
the non-governmental organisations and traditional ``social
partners'' (e.g., workers unions, economic associations)
exert a considerable in¯uence on political decision-making
processes.
5.3. Goods and Services Derived From the
Water Resource in Switzerland
We classify the goods and services provided by the resource
water in ten groups [29]. They include a living environment
for plants and animals (food and reproduction), drinking
water, water used directly or indirectly for the production of
economic goods (e.g., irrigation, water-cooling for nuclear
plants, drainage, mineral water), hydro-electric power
(particular form of water use for the economic production),
transport and absorption of waste waters, support for
economic production and recreation (e.g., navigation, gravel
extraction, ®shing), recreation (leisure and tourism), medical
uses (e.g., water cures), geomorphologic changes and
protection (natural hazards) and strategic reserve (e.g.,
reserves in case of war or ®re). All these goods and services
could be theoretically regulated by public policy and/or
ownership, disposition and use rights.
Water management in Switzerland currently faces ®ve
main challenges: (1) the problem of increasing competition
or rival uses of water (in most regions, the spectrum of water
uses has become more heterogeneous over the past last
decades); (2) the problem of phreatic and lacustrine water
quality (related to diffuse pollution); (3) the question of
minimal residual water ¯ows; (4) the problem of increas-
ingly impervious soils (waterproo®ng) in settlements (gen-
eral water planning at a local-authority scale); (5) the
question of natural hazards related to water (¯oods,
permafrost and glacier degradation, debris ¯ows). These
®ve types of problem do not affect the entire country with the
Fig. 3. The gradual differentiation of IRs for ®ve resources in Switzerland.
86 FRE
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ÂRIC VARONE ET AL.

same intensity (e.g., water quality problems in lakes are
typical of the rural areas of the Central Plateau; the question
of minimal ¯ows or some climatic hazards are more
common in the Alpine belt; increasing competition between
uses is typical of urbanised and tourist areas, etc.).
5.4. Evolution of the Water Rights System
Before analysing in details the successive phases of IRs
development, we ®rst clarify the distinction between private
property and public sovereignty, as well as between private
and public water bodies (see [35] for a comprehensive legal
study of the property and use rights in Switzerland).
5.4.1. Private Property and State Sovereignty
Rights to the ownership, disposition and use of water are
regulated by the two general principles of ``private property''
and ``state sovereignty.'' The principle of private property is
de®ned in article 667 of the Swiss Civil Code which extends
the possession of land to the spaces below and above it
(``accession principle''). This includes, subject to legal
restrictions, buildings, plants, and springs. The principle of
state sovereignty with respect to water restricts private
property by reason of the prevailing public interest. This
restriction does not involve a formal transfer of the ownership
title, but it complies with the assignment of a matter to the
public domain and, therefore, withdraws such objects from
private in¯uence without changing any existing property title.
In general, use rights to a resource under state sovereignty
are assigned by means of permits (e.g., for sailing events on
lakes), licences (e.g., for ®shing) or concessions (e.g., for
hydroelectric power production), which offer a use right to a
speci®c resource for payment of a fee.
5
In all of these cases,
the state retains sovereignty with respect to the resource
while according use rights to (e.g., private) users. Generally,
concessions and permits are assigned by the cantons,
municipalities and, in some cases, public bodies.
5.4.2. Private and Public Water Bodies
The Swiss Civil Code (CC), which dates from 1912, makes a
distinction between public water bodies (article 664 CC) and
private water bodies (article 704 CC), on the basis of speci®c
characteristics. The ®rst category ± public water bodies ±
includes surface waters (rivers, streams and lakes) as well as
glaciers and ne
Âve
Âs. Flowing water should be considered as
res communes omnium. As such, they are subject to state
sovereignty, which means that the state can regulate their use
rights. The cantons are responsible for this regulation (article
664, al. 3 CC and article 24 bis, al. 3 Cst). A landowner does
not, therefore, own the surface water that ¯ows along his/her
property. Thus, the surface waters in all cantons are con-
sidered public property with the sole exception of the canton
of Glarus where surface waters are considered private
property.
Groundwater springs are considered private waters
(article 704 CC). They represent an integral part of the
ground on or under which they are located (article 667 CC).
The landowner can, therefore, dispose freely of springs and
groundwater. However, the Swiss Civil Code does impose
limitations on the disposition right, particularly with respect
to the supply of water to neighbours (articles 709±710 CC)
and in the general public interest (article 705 and 711 CC).
Springs rising from a glacier or terrain unsuited to
cultivation (rocks, boulders etc.) (article 664, al. 2 CC),
some major springs of general interest and springs at the
head of a river or stream are all considered as public
property. Similarly, even if they are formally comparable to
water springs, expanses of groundwater of a certain size have
gradually come to be de®ned as public water.
5.4.3. Historical Evolution of the Water Rights System
The evolution of the water rights system relating to water has
been divided into three main phases (see Table 3 below).
The ®rst phase (1874±1912) is primarily characterised by
the Confederation's initial intervention affecting property
rights to water (private or public, cantonal or local) in the
area of the ``protection against water'' and, later, its use
for hydroelectric power production. The sovereignty of the
central state over dams on mountain watercourses was
enshrined in the constitution with the adoption in 1874 of
article 24 which instituted the ``high superintendence'' of
the Confederation over the regulation of dams in the
mountain regions. The Federal Law on the Regulation of
Waters in Elevated Regions of 22 June 1877 was adopted
three years later. On the basis of this law, the Confederation
was to exercise ``high superintendence over the regulation of
waters in elevated regions of Switzerland'' (article 1).
Article 8 makes provision for the expropriation which may
be necessary to implement this law and which would result
in the modi®cation of property rights to water, both private
and public, in the public interest.
The second phase (1912±1953) is marked, on the one
hand, by the adoption of the Swiss Civil Code in 1912, which
de®nes private and public water on a national level and
represents a major change within the regulative system, and,
on the other hand, by a series of interventions affecting
disposition and use rights of water which aimed at restricting
unlimited private property rights for the sake of the public
interest. The Civil Code de®nes that the rights of disposition
of public water is regulated by the cantons (article 664, al. 3
CC), particularly with respect to the granting of licences,
permits and concessions. With the coming into force of the
Federal Law on Water Power of 1916, these rights of
disposition were subject to a clearer formal regulation
(Chap. 3 of the law about the concessions). Article 17
5
Concessions differ from licences in that with licences, users obtain the right
to use the resource in competition with users of the same type (e.g., other
®shermen or sailors) whereas in the case of concessions, the user receives an
exclusive right to the use of the resource.
INSTITUTIONAL WATER REGIMES IN SWITZERLAND 87

introduced into law the principle of the subordination of the
use of private watercourses to the cantons (limitation of the
right of disposition over private watercourses). According to
the Civil Code, the right of disposal over private water
bodies is, in principle, unlimited. Limitations exist, however,
in favour of neighbours (articles 709 and 710 CC) and in the
case of the prevailing public interest (articles 705 and 711
CC). This right of disposition was also diminished with the
coming into force of the Civil Code, which instigated the
actual transfer of certain private water bodies to the public
sphere. With respect to use rights, the only rights strongly
affected during this period were use rights for hydroelectric
production.
During the third phase (1953±1975), ownership and
disposition rights as de®ned in articles 664, 667 and 704 of
the Civil Code did not evolve formally. The only change in
the water rights system was on the level of the organisation
of use rights. The main changes were brought about by the
adoption of article 24 quater of the Constitution (1953) on
the protection of water bodies against pollution, which
introduced a major new restriction on users of the resource
water: all uses, irrespective of their nature, must preserve the
quality of water bodies. The revision of article 24 bis of the
Constitution in 1975 added new restrictions to the use of
water, particularly with respect to hydroelectric power, by
instituting the principle of the quantitative protection of the
Table 3. Phasing of the water rights system between 1874 and 2000 (Legend: X±XXX indicate on the relative importance of the respective dimension in a
certain period).
Phases Interventions on Range of goods and Main actors groups
Ownership
rights
Disposition
rights
Use rights
services regulated
Phase 1:
1874±1912
XX Geomorphological changes,
hydro-electrical power, and
production (¯oating, irrigation)
State: Federal State, Cantons
Owners: Municipalities and cantons, private
owners
Appropriators: Traditional appropriators
(irrigation unions, ¯oating companies,
traditional industry), spatial planners
(administrations of the Confederation and
the cantons), hydroelectricity companies
End-users: Riparian residents (mainly in
the lower valleys and in the Central Plateau),
industry (metal), industrial services of
certain cities in the Central Plateau
Phase 2:
1912±1953
XXX XX X Consumption, production,
energy, support, recreation,
medical uses, geomorphological
changes, and strategic reserve
State: Federal State, Cantons, Federal Court
Owners: Municipalities and cantons,
private owners
Appropriators: Idem 1874±1912 other
companies making use of concessions (e.g.,
for gravel extraction), distribution services
of cities in the Central Plateau
End-users: Riparian residents, industry,
electricity distribution services of cities,
consumers (drinking water and electrical
power)
Phase 3a:
1953±1975
XX Living environment, consumption,
production (industry), and absorption
State: Federal State, Cantons, Federal Court
Owners: Municipalities, Cantons
Appropriators: Mainly public corporations
(water distribution and wastewater removal
services)
End-users: Households, industry, ®shers,
aquatic fauna and ¯ora
Phase 3b:
1975±2000
XX Living environment, consumption,
production (industry and agriculture),
energy, absorption, support (gravel),
geomorphological changes, and
strategic reserve
State: Federal State, Cantons, Federal Court
Owners: Municipalities, Cantons, private
owners
Appropriators: All pot. appropriators, esp.
hydroel. comp. and terr. planners
(restrictions regarding to the management
of watercourses)
End-users: Households, industry, riparian
residents, ®shers, aquatic fauna and ¯ora,
tourists
88 FRE
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ÂRIC VARONE ET AL.

hydro-system. The sub-division of this phase into two sub-
phases is therefore based on the two different types of
intervention which emerged: the protection of water in terms
of quality in phase 3a (1953±1975), and in terms of quantity
in phase 3b (1975±2000).
In general terms, we can observe a gradual shift over the
20th century from interventions affecting ownership rights
(phases 1 and 2) to interventions affecting disposition rights
(phase 2) and use rights (phases 3a and 3b).
5.5. Evolution of the Policy Design Relating to Water
Signi®cant developments were observed with respect to
public policies and these took place in four main phases.
Swiss water-related policies have mainly developed along
three main topics: protection against water, water exploita-
tion (for hydroelectric power production), and protection of
water. The relative importance of each of these topics within
the different phases of the Swiss water policy is evidenced
according to the ten groups of goods and services derived
from the resource water (see Table 4 below). A shift in the
relative importance of speci®c goods and services in a
certain phase indicate the problems and their perception for
the reference period (e.g., for ``consumption'' and ``absorp-
tion'': shift from ``exploitation'' to ``protection'' at the end
of the century). Actually, all goods and services can be
assigned to new topics in a new phase.
Two main collective problems were to be solved during
the ®rst phase (1871±1908): on the one hand, an increase in
¯ood events which marked the whole 19th century and the
cause of which was assigned to deforestation in mountain
areas; on the other hand, pollution of certain stretches of
rivers beneath cities and industrial plants (mainly Basle)
which threatened ®shing activities. Policies regulating
protection against water (river corrections, alluvial valleys
drainage, mountain torrent corrections) were created at the
turn of the century. The major river correction projects of the
19th and 20th centuries were mainly concerned with the
protection of people, the land and other goods. Hydraulic
engineering structures were mainly intended to provide
protection against mountain torrents, erosion and landslides
and this was the motivation behind the combination of
Table 4. Phasing of the public policies related to water between 1871 and 2000.
Phases Description Range of goods and services regulated Main actors
Phase 1:
1871±1908
Policy relating to the protection
of the population against water (¯oods)
and ®rst signs of intervention relating
to the quality of water
Geomorphological changes, living
environment, ®shing, and absorption
Actors of the institutional arrangement:
Confederation, federal administration on forests
Target groups: Municipalities (in mountainous
regions), forest owners, polluting industry
Pressure groups: Scientists, experts (forests)
End-users: Population in the plains, ®shers
Phase2:
1908±1953
Policies relating to the exploitation of
water, mainly valuation of its potential
for hydroelectric production and for
agriculture (drainage)
Hydroelectricity, drainage,
geomorphological changes, living
environment, ®shing, navigation,
and absorption of wastewaters
Actors of the institutional arrangement:
Confederation (federal administrations on forests, of
energy, and military), administrations of the cantons
(forests, energy), municipalities in mountainous regions
Target groups: Farmers (drainage), owners of
watercourses, polluting industry
Pressure groups: ``Heimatschutz'', environmentalists,
municipalities in mountainous regions, experts
(water pollution)
End-users: Farmers, population, Swiss economy
Phase 3:
1953±1991
Policies focusing on the qualitative
protection of surface and groundwater
Consumption, bathing, energy,
irrigation, drainage navigation,
®shing, geomorphological changes,
living environment, and absorption
of wastewaters
Actors of the institutional arrangement:
Confederation, cantons, federal and cantonal
administrations (mainly services for the protection of
water), international commissions
Target groups: Municipalities, industry, farmers
Pressure groups: Associations for water protection,
environmental organisations
End-users: Overall population, aquatic fauna and
¯ora, ®shers
Phase 4:
1991±2000
Policies aiming at a global protection
of water in terms of quality and
quantity in order to preserve the supply
of drinking water, the functioning of
the hydro-system, and, more generally
speaking, the environment
Consumption, landscape
conservation, energy, agriculture,
navigation, gravel extraction,
®shing, geomorphological changes,
living environment, and
absorption of wastewaters
Actors of the institutional arrangement:
Confederation, cantons, federal and cantonal
administrations (mainly services for the protection of the
environment)
Target groups: Municipalities, hydroelectric companies,
farmers, army
Pressure groups: Environmental protection
organisations, ``anti-ecologist'' groups
End-users: Overall population, aquatic fauna and ¯ora,
®shers
INSTITUTIONAL WATER REGIMES IN SWITZERLAND 89

hydraulic engineering and forest regulation concerns in the
mountain regions (Article 24 of the Swiss Federal Constitu-
tion of 1874, Federal Law on the Hydraulic Engineering
Police of 1877). The target groups of the federal measures
were mainly the owners and users of forests, the local
municipalities (owners of forests) in mountainous regions
and polluting industrial companies.
Water use policies (particularly concerning energy
production) increased during the second phase (1908±
1953). The use of water for the production of hydroelectric
power resulted in the awarding of concessions (Article 24bis
of the Federal Swiss Constitution of 1908, Federal Law on
the Use of Water Power of 1916). The damming proposals of
the ®rst period were joined by measures aimed at promoting
the drainage of uncultivated land, initially during the Second
World War in the context of the ``Wahlen Plan,'' and then
mainly in the context of measures to improve land use
associated with the coming into force of the Agriculture Law
of 3 October 1951. This law resulted in the implementation
of a major programme of land improvements aimed at
increasing agricultural productivity. The target groups during
this phase were the farmers (drainage), the owners of water-
courses (production of energy) and the polluting industries.
The third phase (1953±1991) saw the development of
water quality protection policies (Article 24 quater on
protection of water of 1953, Water protection laws of 1955
and 1971, Law on the Protection of the Environment in 1983,
Decree on Substances and Interdiction of Phosphates in
Detergents in 1986). Increasing population density, indus-
trialisation and economic expansion meant that water
suddenly needed protection because of great problems of
water quality (mainly eutrophication of lakes). Article 24 bis
of the Federal Swiss Constitution was rede®ned in 1975,
with the aim to improve the co-ordination of all efforts and to
take into account the entire water cycle in the protection
policy: household use, protection of water springs and
prevention of damaging effects to water (qualitative and
quantitative protection). However, this global approach was
only really implemented with the adoption of the third Law
on Water Protection in 1991. The target groups of the water
protection policies were mainly the industries and the local
municipalities (responsible for the development of waste-
water treatment plants). Farmers affecting water by diffuse
pollution and users transforming the hydrological processes,
such as hydro-electrical companies, were not targeted by the
water policies.
During the fourth phase (1991±2000), the qualitative and
quantitative water protection acts were included in 1991 in
the revision of the water protection acts of 1971 (introduc-
tion of regulations on residual water ¯ows in addition to the
existing care and redevelopment obligations, sewage treat-
ment plants, limit values for toxic substances etc.). In 1991,
the old law on the regulation of waters was also revised
(Federal Law on the Management of Watercourses) in order
to take into account the new needs of protection of the
hydrological processes. In 1996, the Water Power Act of
1916 was also revised and introduced disposition for the
protection of landscape (new Article 49). Finally, the Decree
on the Protection of Water of 1998 formulated ecological
aims for water bodies and made provisions for the
implementation of planning instruments (e.g., water protec-
tion areas, water protection measures, ground water protec-
tion areas for drinking and service water) as well as speci®c
measures (e.g., fertiliser use that is compatible with
protection of water). During this phase, nearly all the goods
and services provided by the water resource are considered.
The target groups are therefore wider and include the local
municipalities, the industries, the farmers and the army.
The main impact of this evolution has been a redistribution
of the relationships between the various goods and services
produced by the resource water (e.g., water policy at the
beginning of the century did not recognise the service of water
as a living environment for plants and animals; the preser-
vation of this service is one of the main objectives of the
current Federal Law for Water Protection adopted in 1991).
However, there is no integrated water policy (i.e., one that
integrates all the goods and services produced by water) in
Switzerland and the problem of the impact of the recent chan-
ges in the water policy on sustainability is still an open quest-
ion. In the next chapter, we shall combine both approaches
(evolution of the water rights system and the public policies) to
evidence the development trajectory of the water regime.
5.6. Development Trajectory of the Water Regimes
in Switzerland
Throughout the reference period (1870±2000), it is possible to
distinguish ®ve phases in the development of the water policy
regimes development in Switzerland (see Table 5 below).
The ®rst phase (1870±1912) is quali®ed as a simple
regime due to the fact that on the national level there did not
yet exist a uni®ed water rights system. It was only in 1912
that the property rights to water were clearly regulated at
national level with the enactment of the Swiss Civil Code.
The situation cannot, however, be quali®ed as ``no regime''
as from 1870s, the sovereignty of the federal state over two
water issues, i.e., the policing of dams (after 1874) and the
exploitation of hydroelectric power (after 1908) were
gradually introduced in Switzerland. This must actually be
considered as a strong restriction of the ownership and
disposition rights of the owners of surface waters (often the
cantons or local authorities). On the other hand, public
policies were characterised by a low level of diversi®cation,
which again justi®es the classi®cation of this phase as a
simple regime. There was no competition between the
different groups of goods and services concerned which,
moreover, were weak in scope. The coherence of the regime
was medium: with regard to protection against water, the
target groups partly coincided with the owners of the surface
waters (public bodies); in the ®eld of water protection, the
90 FRE
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ÂRIC VARONE ET AL.

target groups (polluting industries) were not the owners of
the resource.
The subsequent phase (1912±1953) is also quali®ed as a
simple regime due to the fact that, despite the enactment of
the Civil Code in 1912, the scope of the goods and service
regulated remained low. In fact, the Civil Code regulated the
ownership and disposition rights to private and public waters
but it did not explicitly concern speci®c goods and services.
In other words: the Civil Code regulated the ownership but
not the use rights. However, it must be stressed that this
major change in the water rights part of the water regime was
more promoted by a general political evolution in Switzer-
land (evolution of the Confederation) than by a need that
speci®cally arose from water management itself. Further-
more, with the establishment of a third branch of water
policy (exploitation of hydroelectric power), the coordina-
tion of the different policies showed a tendency to decrease.
The lack of co-ordination between the three branches of
water policy then increased further during almost all of the
20th century. The external coherence remained weak due to
the same reasons as in the previous phase.
After 1953, the regime can be quali®ed as complex. Firstly,
the water rights system was beginning to change through the
introduction of restrictions on use rights aimed at the
qualitative protection of water, a phenomenon which did not
exist before the adoption of Article 24 quater of the
Constitution in 1953. Secondly, the scope of the regime and
the competition between uses increased. The pressure for
further restrictions of userights in order to promote protective
activities mainly came from the local authorities and industry
(i.e., target groups) which supported the aim of reinforcing
water protection with the help of further subsidies for the
construction of waste water treatment plants. They acted
through their representatives in parliament and also by means
of a popular initiative. The external coherence of the regime
remained medium: certain target groups (e.g., farmers for
drainage, polluting industries) did not possess ownership or
disposition rights to water. Efforts to establish co-ordination
Table 5. Phasing model for the evolution of the institutional water regimes in Switzerland (1870±2000).
Phases Water rights system (RS) Policy design (PD) Institutional regime
Phase 1:
1870±1912
No uni®ed water rights system at
national level; ownership rights are
regulated at cantonal level (mainly
private property)
Establishment of the sovereignty
of the federal state over the policing
of waters and the utilisation of
hydropower
Emergence of independent sectoral
public policies with three particular
objectives: protection against ¯oods,
decrease of pollution in urban zones,
improvement of electricity supply
in the country
Simple regime
Weak scope (mainly for the RS)
Weak external coherence
Phase 2:
1912±1953
Introduction of the Swiss Civil
Code (1912): distinction between
public (surface waters) and private
waters (underground water and springs)
The Civil Code does not regulate any
speci®c goods and services
General establishment of the
concession system for the utilisation
of water for hydroelectric power
production
Implementation of three independent
sectoral public policies (protection
against water, exploitation of water,
water protection) aiming at regulating
several collective problems (protection
of the population, protection of the
environment, production of goods
and services, energy, and food)
Simple regime
Weak scope (increasing for the PD, but
remaining weak for the RS)
Medium external coherence (some target-groups
are not the owners)
Phase 3:
1953±1975
Limitation of certain use rights
(discharge of wastewater, households)
through measures for the protection of
water in terms of quality
Intensi®cation of the implementation
of independent sectoral public policies
(mainly in the ®eld of water
protection) aimed mainly at solving
the qualitative problems of water
(eutrophication). Diffuse pollution by
agriculture is not regulated
Complex regime
Medium scope (quantitative uses not regulated)
Medium external coherence
Phase 4:
1975±1991
Limitation of use rights through
measures for both the qualitative and
quantitative protection of water and
through environmental protection
measures
Intensi®cation of the qualitative
protection of water (2nd Law on the
Protection of Water, 1971); adoption of
the ``polluter-pays'' principle (Law on
the Protection of the Environment, 1983)
and of planning and co-ordination measures.
Complex regime
High scope (quantitative uses regulated in the
RS from then on)
Medium external coherence
Phase 5:
1991±2000
Increase in the restriction of
disposition and use rights in the
third Law on the Protection of
Water (1991)
Integration of the sectoral policies into the
framework of the third Law on the
Protection of Water (1991)
Transition towards an integrated regime
High scope
High external coherence
INSTITUTIONAL WATER REGIMES IN SWITZERLAND 91

between the actors in the three branches of water policy were
more or less non-existent during this period.
The regime was complex throughout the subsequent 15
years (1975±1991). We separate it from the previous phases
mainly due to the adoption of the Article 24bis of the
Constitution in 1975. This article translated the growing
awareness since the 1970s of the necessity to integrate the
qualitative and quantitative management of water into a
concrete legal basis. However, this increasing awareness,
which was repeatedly expressed by the population, would take
more than 15 years to be put into concrete terms with the
adoption of the new Law on the Protection of Water of 1991. In
the course of this 15-year period, the political terrain was
gradually prepared through various political decisions in the
®eld of environmental protection (e.g., Law on the Protection
of the Environment of 1983, Law on Land-Use Planning of
1979). The scope of the regime became rather high: basically
all goods and services were regulated. Compared to the pre-
vious phase, the policy design improved to some extent; this
was mainly a consequence of the development of co-
ordination instruments between the different sectoral water
policies (e.g., zoning, wastewater discharge plans, the balanc-
ing of different interests). The external coherence is quali®ed
as medium due to the fact that the target groupswere far more
restricted than the actors who were actually concerned by the
water rights system. This gap was generated by the absence of
political regulations on quantitative use rights to water.
By considering actors who draw large quantities of water
for their uses (e.g., irrigation, hydroelectric power genera-
tion) as target groups of water policy in Switzerland, the new
Federal Law on the Protection of Water in 1991, however,
bridged this gap. We can, therefore, qualify the regime as
one with a high external coherence. But the policy design
itself is still characterized by the absence of good co-
ordination between the three former sectoral water policies
and by a weak level of concretisation ± at least at that time ±
of the principle of quantitative water protection. As all of
the goods and services of the resource water were now
regulated, the regime has a high scope. We can, however,
consider the present water regime an integrated regime.
In conclusion, we may state that at national level, the
water regime developed from a simple regime (1870±1953)
to a complex regime (1953±1991) before achieving the start
of integration in the 1990s due to the adoption the third law
on water protection.
6. CONCLUSION: USEFULNESS AND LIMITATIONS
OF THE IR APPROACH
The advantages and added value of the IR approach can be
summarised in seven points.
(1) The IR approach proposed in this article shed new light
on the study of heterogeneous uses instead of (single)
homogeneous use. One limitation of the Common Pool
Resource (CPR) theory is that it focuses on a single use
(see, for example, the criticism of Steins and Edwards
[36]). An approach based on the multiple-use IR is much
more realistic in countries with a high heterogeneity of
water uses, like industrialised countries. It also stresses
the re-distributive effects of IR change between different
user groups (i.e., social dimension of sustainability).
(2) The resource perspective (stock and yield) also allows
consideration of all the goods and services provided by a
resource, including those goods and services that have
yet to be discovered. This facilitates a parallel considera-
tion of protection and exploitation policies (i.e., eco-
nomic and environmental dimensions of sustainability).
(3) The integration of resource policies and order-policy
intervention makes it possible to draw a distinction
between formal property rights (private law) and
informal but real use rights (public law, self-regulation).
The gain in insight associated with this combined
concept can be demonstrated as follows (see Fig. 3,
Section 5.1): for example, if one examines the property
and use rights alone, the regulative system for the
resource soil emerges as being ``better'' (related to the
horizontal axis) than that for the resource water. If the
policy design is examined in isolation, the policy design
for the resource water emerges as being ``better''
(related to the vertical axis) than the soil policy design.
These contradictory conclusions are merely partial and
can be overcome if the two dimensions of each IR are
considered in conjunction.
(4) With respect to practical utility, the combining of public
policies and property rights gives rise to an enlargement
or broadening of the steering potential of natural re-
sources. As a result, it helps us to conceive new directions
for the sustainable steering of natural resources (com-
prehensive and integrated management for resources).
The comparison of the regimes reveals possibilities as to
how control, and hence the institutional framework of the
resource management, can be improved. Whereas, for
example in the case of soil, co-ordination between the
different policy areas would represent an urgent priority,
in the case of air and landscape, the creation of property
rights would be an option. The proposals must be
conceived in such a way as to allow new possibilities
for sustainable use in the form of incremental develop-
ment. Property rights changes can only be provided if
windows of opportunity are available.
(5) Insights into the status and the conditions of the
formation of IRs also allow the consideration of the
external factors of the Common Pool Resources (CPR).
Whereas many studies on CPRs describe the design
principles of the management system itself, the external
ecological, socio-economic and ± in particular ± the
political-institutional context are neglected. Further-
more, the IR concept considers the frame set by sectoral
policies as important for the use of resources.
92 FRE
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ÂRIC VARONE ET AL.

(6) The identi®cation of triggers of IR change will facilitate
improved treatment of rival uses of public and mixed
goods. This should provide further insights into where,
when and on the basis of which political conditions
the resource regimes change under the in¯uence of
politically perceived scarcity.
(7) The example of water in Switzerland shows that the
proposed regime analysis can be applied with success to
the study of the evolution of resource use and protection
in industrialised countries. As already stated, taking into
account only one dimension of the IR concept (design or
property rights) would give only partial results. The
regime concept should however been tested in other
situations like urban areas in developing countries.
Moreover, the analytical framework would certainly
give good results in the analysis of situations with high
natural or human-created scarcity, and therefore high
competition between uses (e.g., desert environments,
overpopulated mountain regions, etc.).
The proposed IR-framework has also some evident limita-
tions and weaknesses:
(1) The analysis of the water rights system and the policy
design was made at the national level. In federalist
countries, like Switzerland, regional (here the Cantons)
laws are very diversi®ed. It is therefore dif®cult to
evidence a ``national IR.''
(2) The regime analysis does not take into account informal
rules, like negotiations between actors, oral traditional
regulations, social norms, and even illegal practices, that
can highly modify the formal IR.
(3) The scale in which the practices of various user groups
has the highest impacts on the sustainability of water
management is certainly the regional scale (e.g., river)
and not the national level. In order to analyse the impacts
of an IR on the resource sustainability, a change of scale
is needed. It is not sure that there is not a real gap
between the national regime and the practices at a local
or regional level (river basin or tributary basin).
Thus, comparative case studies at a river basin scale are
requested in order to evidence the links or potential gaps
between the national regime, as shortly described in this
article,
6
and the real local or regional practices in different
river basins of Switzerland. Such case studies should allow
to identify formal and informal rules-in-use and to assess the
possibilities of testing the effects of a speci®c IR on the
resource sustainability, using indicators of economic,
environmental and social development.
ACKNOWLEDGEMENTS
This research was supported by the Swiss National Science
Foundation (Project: Comparative analysis of the formation and
outcomes of resource regimes in Switzerland, Nr. 1214-
055890.98.1, co-directed by P. Knoepfel, I. Kissling-Na
Èf and F.
Varone) and by the European Commission (Project: European
Water Regimes and the Notion of a Sustainable Status, EVG3-1999-
00001P). We strongly acknowledge our colleagues of both projects
and ®rst of all P. Knoepfel, S. Nahrath, K. Bisang and A. Thorens,
as well as the helpful criticisms of E. Ostrom, B. Barraque
Âand the
Journal's two anonymous reviewers.
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