Liquid Relations: Contested Water Rights and Legal Complexity

Chapter 7: Special Law: Recognition and Denial of Diversity in Andean Water Control

144 1 bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb 7 Special Law Recognition and Denial of Diversity in Andean Water Control RUTGERD BOELENS INGO GENTES ARMANDO GUEVARA GIL PATRICIA URTEAGA In the Andean region, norms and practices of peasant and indigenous communities play a key role in local water management. In irrigation, for example, users’ groups and organizations have developed—sometimes over centuries— irrigation management practices that incorporate elements from Andean, colonial, and postcolonial water traditions, and contemporary norms and technologies . Both older irrigation systems and new ones, whether “communal,” “state-owned,” or “private,” feature their own specific practices and norms. Therefore, each irrigation system operates by a different set of rules of play. At the same time, despite the great diversity of particular sociolegal repertoires , local management does not operate in isolation from the national context . “Peasant,” “indigenous,” and “local” law is interwoven with official-law norms, rules, and organizational forms. Although local community authorities are often the first level of oversight and coordination to materialize water rights and resolve water conflicts, nonetheless people also turn to public rules and authorities representing official law. The existence of normative plurality in water management systems in Andean countries is not a question but an inarguable fact, grounded in the interaction of different normative repertoires for the regulation of water within a given sociopolitical and physical-technical setting (Beccar et al. ). In order to understand the foundations of water management in Andean communities, therefore, there is a need to recognize this pluralism of water rights repertoires and decipher its empirical manifestations. Apart from this analytical dimension of recognition, there is the question of how to deal with SPECIAL LAW 145 this fact in state law and intervention policies, and how to assure that the governmental judicial system recognizes and validates this social phenomenon. This legal-administrative recognition, then, is different from analytical recognition (Boelens et al. ). Generally, it has major political-strategic dimensions. Often, it is based on claims by societal groups whose collective rights and particular norms have been denied. They demand greater social and political power, and legal-judicial recognition of their norms and rights. But, inherently, this very process of legal-administrative and political-strategic recognition can—intentionally or not—result in processes that counteract local claims for more autonomy, respect, and decision-making power. One recurrent way in which legal-administrative recognition has occurred is through the enactment of special law, the focus of this chapter. In the Andean countries’ legal systems, agrarian and community laws create particular legal rights especially applicable to the peasant and indigenous populations. As Vidal observes, the historical development of this special legislation has had its own particular trajectory that reflects the recurring recognition and denial of sociolegal diversity (Vidal ). Special legislation is commonly grounded in external, essentialized ideological constructs of both “indigenous identity” and “peasant communities” in the Andes. These stereotyped and ideological concepts converge in formal recognition policies to institutionalize local Andean water users’ rights and management norms, freezing dynamic local normative systems, reinforcing the process of subordination to other bodies of law, and strengthening the interests of hegemonic players. Thus, the outcome of this recognition may be the oppression or obliteration of local law, codifying it in isolation from its cultural context and slotting it into larger-scale power structures and strategies. Within the field of special legislation and water management, we focus on the issue of indigenous and peasant legal systems,1 since this is one of the fields of legal debate that has become most important in the past decade.2 First, we turn our attention to the legal-administrative context, which in most Andean countries is centralized in regard to water resource management. Next, we briefly present some historical background on legal pluralism in the Andes, highlighting fundamental features of “recognition policies” since colonial times. In the third section, we analyze the interrelatedness between local rights systems and official legislation, and show how they mutually shape and are shaped by each other. We argue that institutionalizing this mutual relationship through special laws or dual legislation does not resolve the inherently conflictive relations between official law and local normative systems. In the next sections we illustrate this position with the cases of Peru and Chile. In the last section, we reflect on the responses of peasant and indigenous communities in the Andes to the problems of institutionalized legal pluralism. 146 BOELENS, GENTES, GUEVARA GIL, URTEAGA Legal Recognition of Diversity in the Andes...