From Water Law to the Right to Water

January, Thursday 10th  ; 11h30 – 13h30

Moderator : Rutgerd Boelens, University of Wageningen

From scarcity to the state of exception in water government in the Americas. A comparative approach
Liber Martin

This paper focuses on drought and critically addresses emergency regulations in a comparative approach drawing from the study cases of arid or semiarid regions in Argentina, Chile, United States, Spain and Australia. I argue here that droughts are being used politically to justify not applying the law and exercising extraordinary powers to maintain the status quo despite they are normal events rather than exceptional or catastrophic events. The hypothesis that guides this research is that with no direct link to scarcity, emergency regulations due to drought tend to become more frequent or even permanent despite being (in theory and by definition) temporary or exceptional, driving water law and policy into a state of exception. I conclude that drought cannot take the place of scarcity, and both of them should be taken seriously as a departing point for framing water law and policy reforms into a more sustainable and democratic paradigm.


Water Accumulation by Dispossession in Chile: an Analysis of Geo-Legal Devices
Chloé Nicolas-Artero

The present paper aims at analyzing the accumulation by dispossession process from the standpoint of the legal geography. It highlights the geo-legal device that lead to water concentration and accumulation of capital by the so-called extractive sectors. The geo-legal device constitutes «the social game existing around the rules in a particular territorial context», which produce space (Garcier in Forest, 2009 p. 53). Through which geo-legal device do agents produce or reclaim law and space to concentrate water by dispossessing small users? Based on Elqui River Basin case study, I discuss in this paper the hypothesis that three geo-legal devices explain the legal and spatial modalities of water accumulation by dispossession: water concessions granted by DGA, Dirección General de Aguas, water markets and exceptional devices.  The research methodology is based on participant observation of water organizations and on semi-structured interviews with water users, regional and national public institutions. The concept of geo-legal device facilitates the comprehension of water accumulation by dispossession processes by detaching itself from a legal formalism often present in critical approaches. It highlights, first, the power of the civil servants and their spatial perceptions in these processes. These cannot be understood, either, without integrating Chilean society’s economic and social inequalities. Indeed, the inequality in access to and consciousness of law, as well as the economic precariousness of inhabitants explain water dispossession. Finally, this concept highlights the collusion between civil servants and entrepreneurs, a clear class alliance, to developing water concentration strategies. These involve the material appropriation of technical objects, the production and distortion of rules, and the justification rhetoric used in the name of the human right access to water.


Water in the Americas : Crossover Perspectives in Social Sciences. The Challenges of Access to Water and the Right to Water (legal Pluralism, Indigenous Rights)
Ana Gendron

The analysis of the Kayambi communities’ mythical stories of the northern Andes highlights the importance of the geographical environment. Especially its aquatic component. Since colonial times, the complexity of the dynamics of land appropriation and access to water resources had an impact on the redefinition of social relations. The owners of the hacienda to prevent them from entering their estates abandoned the páramo to the comuneros. The geographical distribution of families in the community is a result of the distribution of land at the time of land reform.
It seems that for the Kayambi, huasipungo has become a key element of access to genealogical memory and kinship facts. Thus, even if huasipungo has disappeared as a legal form, it remains as a spatial and temporal reference point and therefore constitutes an essential anthropological object.
The Minga is an important Andean institution. It is active in different contexts where compromises and agreements are always present. Changes in social life of the Kayambi have changed the forms of organization and the division of labor within families. However, the Kayambi continue to base their relations on developed principles of mutual assistance and solidarity.
The Constitutions of 1998 and 2008 formally recognized Indians and their communities as economic and political actors. In this context, anthropological analyses lead to legal questions raised by access to water and its management. The community assembly is the decision-making body concerning community aspects. It has the power to delegate, decide and intervene.
The drastic reduction in the resources allocated to development projects is in contradiction with the fundamental principles set out in Ecuador’s constitutions. Thus, the State no longer has the means to provide concrete assistance to indigenous communities but grants them unprecedented legitimacy by promoting their cultural specificities as invaluable resources of the nation.
For these communities, the legal approach, however accurate it may be, cannot be sufficient to take into account the rules and practices relating to the preservation and use of water resources intertwining with the other social norms. Especially when these social groups are constantly renewing by keeping their community institutions such as Minga, Huasipungo and the mythical and ritual speech acts alive.

Constitutional Reforms for the Enshrinement of the Right to Water: Opportunities and Limitations in Brazil, Colombia and Peru
Camila Gianella, Camila Gianella, Angela Maria Paez, Catalina Vallejo

This paper offers a comparative analysis of constitutional reform processes towards the enshrinement of a freestanding right to water in Brazil, Colombia, and Peru. We identify different dynamics and tensions around water governance in each country and we show how these factors have shaped whether constitutional reforms have been approved in each case. Particularly, we explore why while a constitutional reform passed in Peru, in Brazil and Colombia these attempts have failed. We analyze constitutional and legal documents and we argue that the content of a constitutional right to water is not homogeneous, but has a wide range of meanings. For instance, the right to water can include increased access to drinking water, environmental protection and limitations to natural resources exploitation, equity in accessibility to water sources, and infrastructure for water and sanitation. We show that water protection varies from one country to another, depending on factors like political agenda and coalitions, legal mobilization, social movements, and interest groups (e.g. mining companies, supporters of water supply privatization, and environmental organizations). We analyze these findings in light of the literature on constitutional reform, rights’ protection, and the role courts in Latin America.