Legal pluralism and the politics of inclusion: recognition and contestation of local water rights in the Andes.

Abstract

AbstractIn the Andean countries water has become a source of intense conflicts. Powerful water-interest groups intervene in local water systems and claim a substantive share of existing water rights, neglecting local agreements. These groups are often supported by neo-liberal water reform and privatization policies. This has led to peasant and indigenous mobilization and community action, grounded in shared rules and collective rights. Attempts to formally recognize local rights systems, however, have not guaranteed concrete protection in day-to-day realities, and the 'politics of recognition' have proved problematic. Legal and policy strategies that simply aim to 'include' local and indigenous rights systems - as 'distinct sets of rules and rights' - in the national frameworks are bound to fail. This chapter outlines some important conclusions of the Latin American WALIR (Water Law and Indigenous Rights Program) and critically examines the false policy dilemma of 'incorporation versus autonomy'. It concludes that the rightful critique to prevailing ethnocentric and universalistic approaches must not lead to equally simplistic praise for local autonomy or to cultural relativist reification of local rights systems. Critical analysis of the power relations that underpin both customary and official rights systems is crucial in order to improve local, national - as well as international - water laws. Local water rights and identities are given shape not by isolation or policies that reduce them to folkloric practices, or by legal and hierarchical subordination, but by conscious confrontation and meaningful communication among plural legal systems.