Water Resources Development,
Vol. 22, No. 1, 37–48, March 2006
Formal Law and Local Water Control
in the Andean Region: A Fiercely
Contested Field
HUGO DE VOS*, RUTGERD BOELENS** & ROCIO BUSTAMANTE†
*Department of Environmental Sciences, Wageningen University and Research Centre, Wageningen, The
Netherlands; **International Coordinator, Water Law and Indigenous Rights program (WALIR), Department of
Environmental Sciences, Wageningen University and Research Centre, The Netherlands; †Coordinator for
WALIR in Bolivia and researcher with Centro AGUA, San Simon University, Cochabamba, Bolivia
ABSTRACT Water access and control rights of peasant and indigenous communities in Andean
countries are threatened. Vertical state law and intervention practices, as well as new privatization
policies generally ignore, discriminate or undermine local normative frameworks. Recognition of
diverse local rights and management frameworks is crucial for improving rural livelihoods but also for
national food security. The paper outlines some important findings from the WALIR program (Water
Law and Indigenous Rights). It analyses official water policy in the Andean region in relation to local
socio-legal repertoires. The paper concludes that support of civil society platforms and peasant and
indigenous groups for contestation or reformulation of official law is crucial for the survival of local
management systems.
Introduction
In 2000, a special session of the Second World Water Forum concluded that:
. . . indigenous peoples and their unique systems of values, knowledge and practices
have been overlooked in the Global Water Vision process. . . .There is an urgent need
to correct the imbalance of mainstream thinking by actively integrating indigenous
women and men in subsequent phases . . . and . . . strong measures should be taken to
allow indigenous peoples to participate more actively sharing their specific
experience, knowledge and concerns in the Global Water Vision and ‘Framework
for Action’. (World Water Forum, 2000)
The WALIR program (Water Law and Indigenous Rights) aims to contribute to correcting
this imbalance by analyzing local water management systems and water rights in Andean
countries. As an action research, exchange and advocacy program, it supports civil society
platforms and indigenous and peasant communities’ activities to improve national water
Correspondence Address: Hugo de Vos, Wageningen University and Research Centre, Department of
Environmental Sciences, Nieuwe Kanaal 11, 6709 PA, Wageningen, The Netherlands. Email: [email protected]
0790-0627 Print/1360-0648 Online/06/010037-12 q 2006 Taylor & Francis
DOI: 10.1080/07900620500405049
38
H. de Vos et al.
legislation and policies.1 It consists of partners in Bolivia, Chile, Ecuador, Peru, Mexico,
France, The Netherlands and the USA from the academic world, NGOs, water users
federations and grassroots organizations. The program is coordinated by Wageningen
University and the United Nations Economic Commission for Latin America and the
Caribbean (UN/ECLAC).2 Even though the WALIR program is not yet completed this
paper presents some important findings and policy recommendations.3
Local water management systems and practices are very important in the Andean region.
Indigenous and peasant communities of this region are the main providers of food for its
population. Most management systems are well adapted to the specific local ecological and
social context. They combine complex goals such as meeting crop requirements, frost
protection and crop scheduling, and mirror the social organization and institutional
arrangements that enable the use of this fragile mountain environment (Mitchell & Guillet,
1994; Vincent, 1998). Recognition of the diverse local management systems and water
rights is crucial for improving local livelihoods and national food security.
Although in international policy circles attention for indigenous water systems is
growing, day-to-day realities of indigenous and peasant communities in the Andes
continue to deteriorate. Water reforms in the region generally follow a neo-liberal agenda.
This has often led to technocratic top-down policies and privatization tendencies that
conflict with local management systems and indigenous water rights. Even when
governments have paid attention to indigenous water issues, policies and projects have had
little impact. This has led to explosive situations as witnessed during the so-called Bolivian
‘water wars’ and protests by indigenous and peasant communities throughout the region.
Unrest and tension at national level reflect the urgency of recognition of local rights and the
need for better policies that do justice to claims of indigenous and peasant groups.
This paper first discusses the tensions between official state water laws and local
normative frameworks in the Andean countries. Second, it describes some cases of recent
legal reform initiatives that aimed at decentralizing and deregulating water management
and discusses different strategies of indigenous and peasant groups towards legal reform.
Finally, some recommendations for policy are made to protect indigenous and peasant
water management systems.
Official Law and Local Law in the Andean Region
In many Andean communities different water use and irrigation systems are functioning
side by side. These are managed through different regulation arrangements, with different
origins and forms of legitimation. Ancient irrigation systems often co-exist with more
recent community or state water management initiatives and various forms of individual
water source exploitation. These overlapping systems often give rise to different water
rights within one community or watershed, and individual users possibly participate
in different water management systems. In general, local water rights are based on
a combination of historical rights, claims emerging from labour (or capital) input in
(re)constructing irrigation or drinking water systems, territorial rights or individual rights
linked to land ownership. Often, these complex combinations do not correspond to what is
defined as ‘water rights’ in official legislation.
Water legislation in Andean countries was introduced for general purposes, to be
applied for the entire country. However, official legislation often was formulated without
considering the historical heritage and lessons from the variety of local water management
Formal Law and Local Water Control in the Andean Region
39
systems and different ecological and social contexts. Comparing different Andean
countries, official laws vary considerably in regulating water issues (Table 1). In Bolivia,
legislation has been very weak in the area of water management. In the last three decades,
32 proposals have been made for a new ‘Water Law’, without result (Bustamante, 2005).
This has led to almost complete absence of state institutions in water management issues,
leaving room for development of local customary law, but also favouring powerful actors
in disputes over water rights. In Ecuador and Peru, legislative reforms were implemented
around 1970, in a period of land reforms and state intervention in land issues (Palacios,
2002; Urteaga et al., 2003). In both countries, large investments were made in state
irrigation systems, accompanied by a rather ’statist’ normative framework for
management of these systems. Many regulations were aimed at these large-scale
irrigation systems and are totally inappropriate for mountain areas and small-scale
indigenous and peasant irrigation systems. In Chile, current water legislation was enforced
in the 1980s, by the military regime of Pinochet. Water rights became a tradable
commodity with the introduction of a neo-liberal water law. This resulted in
commoditization of water and stimulation of free markets in water use and management
(Bauer, 1997; Gentes, 2002). All water rights had to be (re)claimed in an official registry,
and ‘unclaimed water’ was up for sale. For indigenous and peasant communities,
registration was expensive and administratively complex. In Chile, legal priorities for
water use (that still exist in Ecuadorian and Peruvian legislation) were eliminated to allow,
for example, water transfer from subsistence-agricultural use to more profitable uses like
industry and mining. If several actors claim the same water sources, concessions may be
auctioned-off to the highest bidder. Most indigenous and peasant groups were not aware of
the new legislation and realized that water had already been claimed by others when it was
too late (Gentes, 2002; Hendriks, 2004).
Table 1. Water legislation concepts in Andean countries (adapted from Hendriks, 2004)
Introduction
current
legislation
Legal concepts
Water control
Role of state
Origin rights
Priority water
use
Transfer rights
Time frame
Bolivia 1906
Chile 1981
National resource State-regulated
for public use
resource, privatized
control
State weak in
State guarantees
regulating water, proper functioning
in practice favor- water rights market (in
ing local law or practice prioritizing
powerful elite
economic interests)
Historical
Register/ Auction of
documents/use
undeclared water
(often accessory
to land-rights)
Yes
No
Yes
Depends
Yes
Indefinitely
Ecuador 1972
Peru 1969
National resource for
public use
State property
State seen as responsible for regulating
use and guaranteeing
infrastructure
Given by state/
local practice
State seen as
responsible for
water regulation,
distribution and
local management
Given by state/
local practice
First drinking water
and
agriculture
No
Depends
First drinking
water and
agriculture
No
State can revoke
40
H. de Vos et al.
Currently, proposals are drafted to reform water legislation in many Andean countries,
to solve the current and avoid future water crises. Although there is a consensus that
decentralization can play an important role in stimulating more efficient and sustainable
use of water, the how is widely contested. Donors and governments particularly favour
privatization and deregulation, following the Chilean example. However, indigenous and
peasant movements see this model as a threat to their own management systems and water
rights, pointing to the mixed results in the Chilean case (Bauer, 1998; Hendriks, 1998;
Dourojeanni & Jouravlev, 1999).
Since the existence of peasant and indigenous rights regimes is either ignored or poorly
recognized by state law, local regulations and solutions in water management tend to be
overlooked by official policies and intervention strategies. Moreover, in the Andean
countries, the decision-making power of state irrigation institutions is often based on
undemocratic principles and under-representation of local communities. In order to avoid
processes of discrimination, subordination and exclusion, indigenous and peasant
communities aim for participation in the legal reform processes and recognition of their
water rights and management systems. However, this struggle for formal and legal
recognition poses enormous conceptual and strategic problems. The notion of
‘recognition’ is, by definition, many-faceted and generally ambiguous (Boelens et al.,
2005; Zwarteveen et al., 2005).
In practice, official law and customary law exist side by side and regulations are
often contradictory. This situation of legal pluralism poses problems for legal reform
and formulating intervention strategies. Often, ‘rationalist’ policies and proposals do
not recognize the diversity of local contexts and customary law. Many water
professionals and economists either ignore the existence of complex local normative
systems or perceive it as an ‘obstacle’ to a desired ‘efficient’ future condition
(Rosegrant & Binswanger, 1994). However, WALIR starts from the position that better
understanding of legal pluralism is needed to improve proposals for legislation and
policy. First, legally plural water management systems should be understood as
complex and interacting systems. Second, these systems are context-dependent and
dynamic. Third, institutional and legal changes are more or less open, non-linear and
on-going processes of social dialogue, debate, negotiation and struggle (Zwarteveen
et al., 2005).
Starting from this ‘legal pluralism’ approach implies that there is no a-priori analytical
hierarchical discrimination between co-existing state and customary legal normative
frameworks (in the sense of higher moral values or degrees of legitimacy, effectiveness
or appropriateness of a legal framework) (Benda-Beckman, 1996). Therefore, the
WALIR program explicitly promotes understanding and recognition of different legal
systems through a process of inventory/presentation of (analytically) equally valid
systems existing side by side. However, in political terms it is important to recognize that
state law is a source of great social power. Water users are often constrained by state law,
but at the same time they can try to consider it as a powerful resource for claiming and
defending their interests and rights. The WALIR program sets out to analyze both, state
law and local normative systems, to contribute to discussions about recognition and legal
reform to complement strategies for social struggle and progressive change. Case
material on recent policy changes towards decentralization will be used to illustrate the
importance of both aspects of legal ’recognition’ and to draw lessons from the different
national contexts.
Formal Law and Local Water Control in the Andean Region
41
Legal Reform and Recognition Struggles
As other regions of the world, Andean countries try to deal with current and future ‘water
crises’ through new water policy proposals entailing at least some form of
decentralization of water management. In principle, such policies could be a major
step toward strengthening users’ organizations by granting them greater decision-making
power and security in their water rights. However, many donors, governments and the
private sector mean something different by ’decentralization’, generally interpreting it as
deregulation and privatization. International lending agencies considered the Chilean
water model as an antidote to rigid state bureaucracies, as well as to ’traditional’ water
allocation systems. It was presented as an example, to stimulate efficiency through a
market-based system of water allocation. Instead of recognizing the legal plurality of
local water rights, it tried to replace these with a single market logic that was perceived
as superior. The World Bank and the Inter-American Development Bank (IDB) not only
stimulated adoption of this model in conferences and official documents, but, behind
closed doors, also exerted strong pressure on governments, conditioning future loans on
successful adoption of new neo-liberal water legislation (Trawick, 2003; Boelens &
Zwarteveen, 2005a). Under international pressure and in awe of the Chilean economic
success, governments of Bolivia, Ecuador and Peru were considering simply copying it
(Bauer, 1997; Dourojeanni & Jouravlev, 1999). Decentralization and ’state
modernization’ thus became closely linked to transfer of public tasks to the private
sector, cutting back on public spending in water management and liberalization of water
management and rights.
In Peru, Bolivia and Ecuador, massive nation-wide uprisings have effectively resulted
in a standstill or in modifications in the implementation of the new Water Laws. Protests
not only questioned the privatization plans of water services, water use and management,
but indigenous and peasant groups also demanded to take part in the policy-making
process. These demands aimed at changing their historical exclusion from these political
arenas, which has resulted in water policies and laws that are not grounded in an in-depth
analysis of real problems and the potentials of the different players in water management.
Moreover, in the last decade there has been a shift from a class-based to class-, gender- and
ethnicity-based claims for water access and control rights, especially in countries such as
Ecuador and Bolivia (Bustmante, 2005, 2002; Palacios, 2002; Bustamante et al., 2005).
In many regions, the traditional struggle for more equal land distribution has been
accompanied or replaced by collective claims for more equal water distribution, and for
legitimation of local authorities and normative frameworks for water management. Types
and outcomes of struggles of course depend on the national (and local) context. Chilean
demands will differ considerably from Ecuador, Peru or Bolivia, where discussions on
legal reform are still ongoing. Struggles to defend, define and enforce local rights systems
and organizational principles may be positioned within existing law, head to head with the
law or in the margins of law.
Recognition Using Existing Legislation
Notwithstanding the long tradition of top-down water control policies and official
legislation, there appear to be opportunities for customary and indigenous cultures and
water rights systems. The tendency for decentralization is often seen as an opportunity
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for recognition of local law and most Andean countries have accepted international
agreements and work towards constitutional recognition of ethnic plurality and
multiculturalism (in some cases, Ecuador for instance, even ‘interculturalidad’) (Assies
et al., 1998). However, when it comes to operationalizing such general agreements in
water laws and policies, particularly local and indigenous forms of water management
(especially water control rights) tend to be denied, forbidden or undermined (Pacari, 1998;
Urteaga, 1998; Bustamante, 2002; Gentes 2002; Guevara et al., 2002; Palacios, 2002,
2005; Gelles & Boelens, 2003; Urteaga et al., 2003).
In practice, using existing laws to fight for recognition is not a straightforward process.
Sometimes, decentralization and recognition went hand in hand with a re-centralization of
state authority (Boelens et al., 2005). In Peru, for example, indigenous and peasant
communities were officially recognized as public interest organizations. The Law on
Peasant Communities and the Peruvian Constitution of 1993 recognizes their economic
and administrative autonomy. However, at the same time these rights are dependent on
official registration and recognition by administrative agencies. The law also does not
recognize the right to regulate or exclude third parties that utilize these resources.
With the continuing attempts to introduce neo-liberal elements in Peruvian water
legislation, state patronizing has diminished to some degree. Still, the deregulation efforts
were no solution for recognition of communal water rights. A rural community may now
legally be able to compete under ‘equal conditions’ with trans-national companies for the
concession to some natural resource, the obvious economic power differences do not
provide a level playing field (Guevarra et al., 2002; Vera, 2005). Recognition without
the transfer of control rights prohibits communities to make use of their local jurisdiction
over their resources (Peña, 2004; Gelles, 2005).
In Chile, a special ‘indigenous law’ was introduced in 1993, to counteract some of the
negative consequences of neo-liberal legislation for indigenous peoples. This included
specific indigenous rights to water resources inside reserved territory. Although the law
guaranteed water for ‘normal functioning’ of indigenous communities, it also stipulated
that existing water rights of third parties would not be affected. This legislation has been
useful for establishing water rights and has enabled (re)introduction of communal water
rights in some cases. However, rights based on the indigenous law were often overruled by
contradicting articles from water and mining legislation. First, water rights from outsiders
were not affected by the indigenous law. Second, indigenous water rights that were not
used could be auctioned after five years. Indigenous communities often did not have the
economic resources to fully develop and use their territorial water rights, which often has
led to transfer of rights to mining and hydro-electricity companies. Third, mining was
often presented by governments and courts as a national priority, or as part of obligations
in international treaties. Ironically, in cases where indigenous rights were fully
acknowledged, this was often stimulated by interested outsiders. According to the business
sector, water rights markets cannot operate efficiently if there are local and customary
rights that are not registered but do entail a certain legal protection (Boelens et al., 2005).
However, water markets, often threatened community irrigation and drinking water
systems where individual water rights were sold to more powerful economic sectors
outside the system (Gentes, 2002; Hendriks, 2004). Instead of creating a transparent
market for water rights, the new system has led to speculation and monopolization of water
rights, and dominance of powerful economic sectors over water distribution (Bauer, 1997,
1998; Hendriks, 1998; Boelens & Zwarteveen, 2005b).
Formal Law and Local Water Control in the Andean Region
43
The examples show the difficulties in using the national official legislation to defend
indigenous and peasants’ water management systems. Often, acknowledgement by official
law led to a more vulnerable position of communal water systems. The inability of official
law to recognize communal water management and the overall dominance of economic
criteria over social criteria or criteria of justice show its blindness for the diverse realities in
the field. This has led to a threat to many indigenous communities, that, with their water,
they have literally ‘sold their future’ to third parties (Hendriks, 1998). Facing legislative
proposals for commodification of water rights and water use, indigenous and peasant groups
of the Andean countries therefore resorted to another strategy: ‘protesta con propuesta’.
Protest against Legislation
Facing the consequences of early proposals and attempts by the Andean governments to
introduce privatization of water services and liberalization of water management and use,
indigenous and peasant organizations started protesting openly. For example, the
Confederation of Indigenous Nationalities of Ecuador (CONAIE) claimed indigenous
rights, demanded authority over ancestral territories and resolution of land and water
conflicts. They supported their claims with large demonstrations throughout the 1990s,
as a political party gained access to Congress and participated in uprisings resulting in
redrafting of the Ecuadorian Constitution (Palacios, 2005).
Another example was the Bolivian ‘water war’. In 1999, the Bolivian government
passed a new Law (No. 2029) on water services and sanitation that included some chapters
on the rights to water resources. A first concession to provide the services was already
issued to a company in La Paz and contracts for the Cochabamba Valley were almost
signed. In order to legalize those, contracts a new Law was passed in Congress and the
government was working on the by-laws needed to implement it. According to
the concession-contract, the new company received exploitation rights in aquifers of the
valley to expand the service area. To expand activities, it immediately increased fees.
An alliance of urban and rural water users protested against the higher consumption prices
and the threat of encroachment on rural water rights. After violent confrontations, the
government had to revoke its decisions and amend all the articles of the draft law to which
the popular alliance objected (Bustamante, 2005; Bustamante et al., 2005).
Protests are also increasingly geared against free international trade of water resources.
The mining treaty between Argentina and Chile, for example, states that “. . .it shall be
understood that the parties will allow investors from either country to develop mining
business, including water resources available in their respective territories. . .” (Boelens
et al., 2005, p. 170). The consequences of this trans-nationalization were shown in the case
of proposals for export of Bolivian water to big Chilean mining companies and cities
(Boelens & Zwarteveen, 2005b). Plans were to export large quantities of water from
indigenous territories. In this region, where rainfall is extremely limited, water is of key
importance for the survival of local indigenous communities. Indigenous leaders continue
to protest, claiming that water is a matter of life and death (Solon, 2003).
Struggles against the law are often based on protests against assimilation or integration
processes, or against outside institutions and companies attempting to usurp or trample
local water rights. Protests are increasingly accompanied by proposals for change of
official law and for greater justice, to (re)gain water rights and obtain authority over
communal resources.
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Proposing Alternative Legislation
Proposing strategies often entails struggles to achieve more participation in decisionmaking processes, greater justice and democracy, or establishing necessary conditions
under the law (access to water and autonomy for management) to avoid confrontations
with the law.
In the last decade, the indigenous movement has strengthened its national
confederations and established international contacts. It adopted a new strategy of
linking local protest to national protest, while at the same time formulating proposals for
positive change of official legislation. One result was the already mentioned recognition of
indigenous rights in most Andean Constitutions.
In Ecuador, CONAIE defended prioritization of water allocation in their own Water
Law-proposal, favouring domestic use and subsistence agriculture above water for
commercial agriculture. In turn, commercial agriculture was to receive a higher priority
than industrial, mining and power generation activities (Pacari, 1998). It also demanded
representation of indigenous and peasant organizations within the institutional framework
for water management and recognition of cultural and social water rights. However, their
proposals have still not actually altered the Water Law. In Bolivia, protest groups gained
more recognition after the already mentioned ’water war’ and gained more access to
negotiations over water reform proposals. As a result, the Inter Institutional Water Council
(CONIAG) was created in 2002, with members from government, social organizations
(indigenous, peasants, irrigators, etc.), public universities, and private companies. Its
mandate was to promote a process to design a water policy and associated legislation for
the country in a more participatory way (Bustamante, 2005). The council strongly
influenced the adoption, in 2004, of new legislation on the irrigation sector, giving legal
recognition to local and customary community laws. However, such a sectoral approach
does not prevent inter-sectoral conflicting demands and the danger still exists that more
powerful legislation will overrule local rights and continue threatening local management
systems and water use. In Peru, recognition of indigenous and peasant rights in water
legislation is far from becoming reality (Guevara et al., 2002). Reaching substantial
agreements on water rights issues that are fundamental to indigenous and peasant
populations remains an enormous challenge. The examples also make clear that it is not
easy to gain official recognition without a change in democratic access and representation
in official regulative institutions.
At this time [2002], regarding the Water Law, we have preferred to suspend debate,
because an unfavorable correlation of forces in Congress could upset the indigenous
peoples’ efforts to defend better water distribution. Market and privatization theory
prevails, and in this context, [these power groups] would achieve a legal instrument
. . . that would smooth the way to materializing . . . their profit seeking, market driven
goals, which would by no means be a contribution to Ecuadorian society. From this
standpoint we feel that it is preferable to keep our proposal on stand-by and continue,
for the time being, with the law we have at present. (CONAIE-lawyer and former
Minister of Foreign Affairs, Nina Pacari, quoted in Boelens et al., 2005, p. 150)
It is because of the difficulties in gaining legal access and recognition that many
local actions and strategies remain in the margins or even ‘outside the law’. Consequently,
Formal Law and Local Water Control in the Andean Region
45
local groups use the margins of law and local opportunities to make their own rules, rights,
procedures and practices that official law does not support, but neither forbids. For these
groups holds that “. . .the less detailed and codified norms and normative structures are, the
more autonomy for local action they have, the better they elude bureaucratic control”
(Boelens et al., 2005, p. 167). In many locations in the Andes this is illustrated by the
existence of a creative variety of norms and management systems that neglect official
procedures and regulations as stipulated in existing water laws.
Access to state law is limited, but state law cannot be neglected since it certainly has
important influence on (the lack of) local opportunities for local water management forms.
Therefore, indigenous and grassroots organizations in the Andean region have fiercely
engaged in the legal battle. In this regard it is important to consider here that efforts to
gain legal recognition do not replace but rather complement local struggles ‘in-the-field’.
At both levels there is political-strategic action to defend water access rights, define
water control rights, legitimize local authority and confront powerful discourses
(Boelens & Dávila, 1998).
Discussion and Conclusion
Alternative water legislation proposals were a reaction to exclusion of democratic decision
making in legal reform processes. Alternatives were designed for privatization proposals
of water services and liberalization of water management and use, as promoted by
international lending organizations and governments. The most important common
features and demands can become a basis to discuss future strategy and legal reform (e.g.
Bustamante, 2002, 2005; Palacios, 2002, 2005; Guevarra et al., 2002; Hendriks, 2004;
Vera, 2005). First, the plural local normative frameworks for management and regulation
of local water management systems should be recognized as valid and valuable. Second,
water should be recognized as a collective/public resource that should be managed,
recognizing the plurality of these local rights systems. Third, individual users should get
guarantees in terms of equity, justice and democracy and operational efficiency. Finally,
discussions on collective rights should include different uses, timeframes and local
autonomy (for a comparison with the USA see Getches, 2005).
Besides first steps of recognition in National Constitutions, a challenge ahead is
transforming these rights into substantive water legislation. The danger of ‘recognition’
should not be overlooked. When some groups or customs are recognized through
legalization, non-recognition of exceptions will always lead to illegalization of others. The
danger also exists that (as in the case of Peru) freezing of local normative systems in
official law can lead to more bureaucratic control over dynamic and diverse intangible
rights. In the face of these dangers several strategies have to be combined.
Alliance building is indispensable for effective ‘recognition’ struggles. Local water
interests are multi-faceted: alongside strategies to (re)appropriate water rights and
facilities there is a simultaneous struggle to define local rules, rights and organizational
forms to manage water, and to legitimize local authorities that should establish and enforce
such rules and rights. At the local level, organization-building and generation of
sustainability and social justice in water management go hand-in-hand with building
of self-respect, identity, capacity, power and collective action. One of the greatest
challenges is to generate creative, pro-active capacity for water management through and
within local water organizations: capacity for analysis and formulation of (counter)
46
H. de Vos et al.
proposals. These activities should materialize at the local level (within and among
households, and communities), but also spread to broader arenas. It has been seen how
farther-reaching alliances and networks are indispensable in order to combine
complementary capacities and forces, resist imposed norms and to influence both
rule-making and rule-implementation, as well as their water access results (Boelens
& Hoogendam, 2002). Users’ alliances do not necessarily consist of peasants or
indigenous irrigators only. They can be based on organizational forms integrating multiple
interest groups and larger territories (de Vos & Wester, 2005).
Platform building and transfer of power and authority is necessary to resolve existing
conflicts and prevent their future proliferation. Pluralism in systems of rights and
authorities cannot be denied by official decrees, the imposition of a single positive
normative system or regulation by the market. This may seem quite appealing to legislators,
politicians, intervening projects and outside authorities, but it will never resolve the
underlying conflicts. The search for dynamic platforms from which to negotiate conflicts
openly, offers an interesting starting point for its resolution (Warner & Moreyra, 2004).
Obviously, understanding and facilitating such processes is complex. It requires knowledge
about local norms, power relations and water use interests. It also requires tact and skill in
facilitating discussions among the different groups, from local organizations to policymakers, as well as creativity and professional expertise to prepare and present constructive
proposals. Fundamentally, interactive water system or platform support is about the sharing
of power, power based on knowledge, economic standing, or social and psychological
status. WALIR will contribute to these objectives by action research with grassroots
groups, training of policy makers and as knowledge broker for constructive platforms.
Sharing power in making and implementing decisions goes against the grain of many
vested interests. Resistance by powerful sectors against legal amendments, recognizing
diversity and actual implementation of more participatory policies is fierce. This point
seems to be key: to what degree do legal changes for ‘recognition’ and their
implementation have the necessary political and social support in society? How can these
new provisions be reproduced beyond the constitution, in ‘strong’ legislation (e.g. water
law), and in public administration and procedures, and daily water management practice?
To what degree are new legal changes actually responsive to demands for greater local
autonomy and self-governance in water management? How does new international
legislation contribute to or counteract indigenous and peasant communities’ rights? These
questions are a new challenge for future processes of legal recognition. They are also the
core of future research of the WALIR program.
Notes
1. Throughout this paper, ‘peasant’, ‘indigenous’ and ‘local’ are considered time-, place-, and context-specific.
For an overview of this discussion, see Assies et al. (1998), Bustamante (2005) and Gelles (2005).
2. Institutions directly involved in research and project implementation are: the Department of Irrigation and
Water Engineering, Wageningen University (coordination); United Nations Economic Commission for Latin
America and the Caribbean (UN/ECLAC) (coordination); Grassroots organizations and NGOs in Peru,
Bolivia, Chile, Ecuador and Mexico; University of California at Riverside, Department of Anthropology;
University of Colorado, School of Law, Boulder; InterAndean Consortium for Sustainable Development
(CONDESAN); Catholic University of Peru, Inter-institutional Program for Improved Water Management,
Peru (IPROGA); Centre for Lat. Am. Research and Documentation (CEDLA), University of Amsterdam;
University ‘Mayor San Simon’, Andean Centre for Water Management, Bolivia; Institute for Development
Formal Law and Local Water Control in the Andean Region
47
Research (IRD), Montpellier, France; Inter-institutional Training Network on Natural Res. Management
(CAMAREN), Ecuador; the Confederation of Indigenous Nationalities (CONAIE), Ecuador; Netherlands
Development Organisation (SNV), The Netherlands, Peru, Ecuador; Committee for Integrated Water
Management (CGIAB), Bolivia; San Luis-College, Mexico. The counterparts with whom they work together,
form a much broader group of participants: institutions at international, national and local level. The Water
Unit of the Netherlands Ministry of Foreign Affairs funds the program.
3. For publications of the program see: http:// www.eclac.cl/drni/proyectos/walir/whatis.asp.
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