From universal prescriptions to living rights: local and indigenous water rights confront public-private partnerships in the Andes.

Author:Boelens, Rutgerd
Position:REGIONAL ISSUES - Report
 
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With growing water scarcity and conflicts in many regions of the world, water rights and property relations have become a pivotal issue in water legislation efforts, policy debates and rural development programs. Still, there appears to be an enormous lack of understanding of what these water rights and property relations are in actual practice. For the most part, policymakers, intervening agencies and rural development institutions typically approach water rights as globally applicable, entitlement recipes. Water rights are portrayed as universally defined procedures that prescribe rational water-use claims and authorize corresponding user licenses. For peasant communities and indigenous water user organizations in the Andean region--as with many parts of the world--the right to water has many components that go beyond universal reasoning and policies. Water rights involve access to resources, context-defined privileges and agreements on system operations. Water rights also include decisionmaking powers over control, issues of belonging (i.e., hydraulic identities--water's role in a particular culture) and agreements that closely intertwine the normative, infrastructural and organizational domains of water control. All these components are created, reconfirmed and then re-created in location-specific historical processes within particular cultural and political contexts.

This analysis focuses on the dynamics of water rights in irrigation water control--responsible for 80 percent of the freshwater consumption in the Andean region--within a wider socioeconomic, cultural and political panorama. It emphasizes that there is an enormous variety of definitions and uses of water rights in practice, and that its meaning and function cannot be assumed. Therefore, to understand the space- and time-specific meaning of a water right, it is necessary to close the policymakers' prescriptive manuals and examine rights in their relation to the legal complexities at the local level.

Despite claims to the contrary, water policies and intervention practices in the Andean highlands often neglect the cultural pluralism inherent to local and indigenous water rights practices, undermining and replacing them with externally controlled allocations, organizations and institutions. The practice of introducing "rational water rights" and "efficient water use" as the vocabulary in discussions of integrated and participatory water management has proven to be quite effective in achieving this objective.

In other analyses, I have examined and criticized the subtle (and not so subtle) efforts to subjugate Andean water rights and user collectives to bureaucratic policies and to the interests of international, neoliberal water privatization programs. This paper takes a closer look at the problematic practices of many of the public-private partnerships (PPP) that, with the strong support from international policy institutions, increasingly dominate the Andean waterscapes. This paper also demonstrates that Andean user collectives---erroneously dealt with as either public or private--do not always accept this modern approach of sidelining and consider this method to be a violation of their water rights and essential needs.

WATER RIGHTS AND LEGAL COMPLEXITIES

In general terms, the right to water authorizes the use of a flow of water from a particular source and requires one to abide by legally or locally established privileges associated with the water right--such as access and operational rights, decisionmaking and control rights, and representational rights, amongst others--provided that certain obligations associated with the water right are fulfilled. But behind such general notions, community water control harbors a tremendous diversity of "living water rights." This diversity is an intrinsic consequence of the historical process of matching regulatory norms, organizational forms and hydraulic infrastructure to the particular social and agrophysical requirements of each locality. Additionally, living water rights result from the water users' negotiations and user-manager encounters within each irrigation system and the confrontation with wider power structures. Here, the interaction among different socio-legal frameworks is crucial, as is the incorporation of a set of rules related to the subsequent irrigation traditions in the Andean region. Such traditions range from the historically rooted, indigenous traditions, as well as Spanish-colonial and hacienda traditions, to the more recent bureaucratic and neoliberal policy traditions that have developed in the region over the last two decades. (1) Rather than constituting a bounded framework clearly corresponding to these traditions, contemporary peasant and indigenous irrigation management combines elements from various official and unofficial traditions, sources and organizations that interact within each specific irrigation system. Often these local rights and rules are not written down; nevertheless, they usually consist of a clear, widely popularized pattern of norms that are part of the collective local memory and reference framework. For these reasons, each system and every water- user collective has its own particular background logic along with general norms, which constitute the heart and fundamental pivot of the system.

Thus, to understand local irrigation management in the Andes, it is critical to examine these historical and cultural perspectives and the prevailing constellation of social, economic and political power structures because, to begin, it is insufficient to focus exclusively on local communities. First, local Andean irrigation systems adopt from--sometimes unconsciously--externally imposed rules and rights, particularly those emanating from state law. Understanding local socio-legal practices requires an understanding of how original norms of the state or external legal systems have become entangled in local communities. This may also be a conscious local strategy. State law constitutes an important source of power in that local water-user communities often seek to use its rules, rights and procedures to their advantage when circumstances require it. When conflicts arise, stakeholders strategically shop around to select the rules and procedures from varying socio-legal systems that may legitimize, defend and strengthen their particular claims. (2) Second, while local law informs users' behavior and orientation in the Andean region, state law cannot be underestimated as a powerful source of imposing norms on locally managed irrigation systems. At the very least, it is an important tool that is activated by external agents in attempts to normalize and control local users, who often are seen as unruly in their eyes. (3) Here, it is common to observe that state institutions and officials draw from their own normative background as they have little knowledge of, or simply deny, local understandings and applications of water rights. This is most evident when state efforts to legitimize and impose the official legal framework do not succeed, stirring local resistance. Thus, state law and water policies constitute both threats and opportunities for local and indigenous water user communities in the Andes.

The strong interaction among prevailing normative systems that shape local water rights (e.g., state water law, religious tenets and indigenous customs) becomes increasingly complex in cases in which additional water rights practices are generated or imposed by multiple project interventions in irrigation. (4) These irrigation and water management projects and programs--often implemented by nongovernmental organizations (NGOs), international companies or consortia of public and private entities to set up or rehabilitate water-use systems with support from donor agencies--commonly set their own criteria for irrigation management. (5) This project law usually finds its roots in local NGO principles (water rights addressing gender, environment and local management); in national policy projects (in the case of irrigation management in which governments turned system management over to user groups); or in international policies and intervention programs (based on the installation of market principles and private water rights regimes). (6)

The socio-legal frameworks of local and indigenous water-use systems in the Andes may be analyzed as "semi-autonomous social fields" surrounded by rules and enforcements emanating from the broader societal setting. This field "has rulemaking capacities, and the means to induce or coerce compliance, but it is simultaneously set in a larger social matrix which can, and does, influence it." (7) As Sally Falk Moore observed, they are semi-autonomous, not only because they can be affected by norms and enforcements under other normative systems--such as the national legal framework--but also because stakeholders in the social field can mobilize these outside norms, or threaten to do so, when negotiating or confronting other actors in the social field. They also have a certain degree of autonomy because the legal or "outside" norms have a limited function and scope within local water territories, in which user groups' own rights, obligations and authorities are often strong and quite important. (8)

For their intrinsic cultural diversity--as well as local, national and international hybridization--the contents of water rights cannot be assumed. Instead, they need to be analyzed empirically. This includes defining--and finding a balance among--the components of a water right (e.g., consumptive use rights, non-consumptive access rights, usufruct and income-earning rights, and control and decisionmaking rights). Additionally, clarification is needed regarding the duties linked to rights, the conditions and mechanisms to acquire rights, the operational rules attached to rights and the legitimacy and enforcement capacity attached to certain...

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